Spouses
Who is a spouse?
First, anyone who is married is a “spouse”.
But other people are also “spouses” in different circumstances based on different pieces of legislation. If you are not married, whether you are a “spouse” or not may depend on whether you are using the definition in the Income Tax Act, the Family Law Act (either in Ontario or BC) or some other piece of legislation.
While it is not technically correct, people generally refer to unmarried spouses as “common law spouses.” That is so common, that I will use the same term here.
In Ontario, the Family Law Act says people are spouses if they are married (obviously) but also if they “cohabit”:
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
This doesn’t mean that your roommate is your “spouse” though. Even if you have lived with someone for three years, you need to be “cohabiting” with them and “cohabit” means something more than just “living together”.
According to s. 1 of the FLA, “Cohabit” means “to live together in a conjugal relationship, whether within or outside marriage.”
So what is “a conjugal relationship”?
The Surpreme Court of Canada answered that question in a 1999 case (M. v. H.) where the Court wrote that:
the generally accepted characteristics of a conjugal relationship… include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. … [T]hese elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. … In order to come within the definition, neither opposite?sex couples nor same?sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
Usually people know if they are living in a “conjugal” relationship, even if they don’t use the word “conjugal.” Occasionally there might be some confusion, but generally speaking, if you think your “roommate” might have a different idea than you about whether your relationship is “conjugal”, you should talk to a lawyer (and should probably talk to your “roommate” too).
If you are in a “conjugal relationship” and it lasts three years, you’re a spouse.
Even if your conjugal relationship has lasted less than three years, if you adopt or have a baby with your partner, and if the relationship is “of some permanence” then you’re still a spouse.
In some rare cases, you might be in a gray area between roommates and spouses or between relationships “of some permanence” and those that are “less permanent”. If you think you’re in one of those gray areas, you should talk to a lawyer about your situation.
Whether you are spouses, and what kind of spouses you are, can be very important in Ontario. Only spouses can have an obligation to pay, or a right to receive, spousal support. But in Ontario only married spouses have automatic rights and obligations to equalize family property when they separate. Unmarried spouses that are only “cohabiting” do not have to divide their property. (There may be ways around that in some cases, so talk to a lawyer if you have questions.)
In BC, just like in Ontario, married people are “spouses”.
Also like in Ontario, unmarried people in BC can also be “spouses” if they have lived with each other in a “marriage-like relationship”, and:
- have done so for a continuous period of at least 2 years, or
- have a child with the other person.
You’ll notice that in BC under the FLA, you will become “common law spouses” after only two years of living together, not three like in Ontario.
You’ll also notice that, in BC if you have a child with someone and live with them in a “marriage like relationship” (apparently) of any duration, you will be a spouse. This is unlike Ontario where you have to live with someone in a relationship “of some permanence” and have a child with them to become a “spouse.”
In BC, spouses have rights to spousal support and property division regardless of whether they are married or are only “common law spouses” because of the first definition above (living together for two or more years).
If you are a “common law spouse” in BC because you have a child with someone and lived with the other parent in a marriage-like relationship for less than two years, you may still be entitled to receive or obligated to pay spousal support, but you do not automatically qualify for the property and pension division rights that “common law spouses” who have lived together for two (or more) years do.
So in BC, instead of a “conjugal relationship” the FLA talks about a “marriage-like relationship”. Again, that leads to the question: what is a “marriage-like relationship”?
BC courts have provided an answer similar to the one the Supreme Court of Canada provided for the Ontario legislation. Many judges have addressed this question since the 1980s, but frequently they refer back to a BC Court of Appeal case from 1986 (Gostlin v. Kergin ) where the judge said to determine if people are living “as husband and wife” we must consider:
Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependant on the other, in accordance with a mutual arrangement.
All those questions, and no doubt others, may properly be considered as tending to show whether a couple who have lived together for more than two years have done so with the permanent mutual support commitment that, … constitutes living together as husband and wife.
After this case was decided, the BC legislation was rewritten and the term “living as husband and wife” was changed to “living in a marriage-like relationship”. The definition above may have been adjusted slightly over the years by various judges, but not significantly. It remains today as hard to pin down as it always has been but again, generally, people know if they are living in a “marriage-like relationship” or not.
As I said above though, if you’re unsure if you’re in a “common-law relationship” or not, talk to a lawyer.
If the information on this site doesn't answer your question, you can book a free, no obligation consultation in Toronto about your divorce and family law rights in Ontario and BC.