What if someone who could have been ordered to pay you support, dies and leaves you nothing in their will, or leaves no will at all. When you are an Estate Litigation Lawyers, this is a common situation. A Will and Estates Lawyers must inquire about these factors when drafting a will and power of attorney.
The technical term for a common law spouse is one whom you lived in a conjugal relationship with.
A number of years ago we posted two blog articles on the issue of dependency relief. See DEPENDENT RELIEF CLAIMS, WHAT IF YOUR COMMONLAW SPOUSE LEAVES YOU NOTHING IN HIS/HER WILL and SUPPORT DEAD OR ALIVE.
The law has not changed dramatically, although it continues to be applied and interpreted.
The most common scenario is a common law spouse who has been left nothing in their spouse’s Will or no Will was made. If there is no Will, then the provisions of the Succession Law Reform Act apply and one’s estate is divided amongst one’s blood relatives in a specified fashion.
There are fewer explosive bitter gifts one can leave to their common law spouse than preparing no Will at all. An Estate Litigation Attorney, as referred to south of the border will know this well.
In that situation one frequently encounters a contest between the deceased’s children and the common law spouse who is not their mother.
To assist in understanding what the court will be looking at in determining whether or not somebody was a common law spouse, the court looks to the decision made in the Molodowich v. Pettinen 1980, which was endorsed by the Supreme Court of Canada M. v. H. 1999. In the Molodowich decision, the court set out what was needed to prove that a common law relationship existed. One can do no better than to simply reprint those statements and questions:
A word of caution. These are just factors that the court will look at. One does not need to meet all of the indicators as every relationship is different.
- Shelter:
a.) Did the parties live under the same roof?b.) What were the sleeping arrangements?
c.) Did anyone else occupy or share the available accommodation?
- Sexual and Personal Behaviour:
a.) Did the parties have sexual relations? If not, why not?b.) Did they maintain an attitude of fidelity to each other?
c.) What were their feelings toward each other?
d.) Did they communicate on a personal level?
e.) Did they eat their meals together?
f.) What, if anything, did they do to assist each other with problems or during illness?
g.) Did they buy gifts for each other on special occasions?
- Services:
What was the conduct and habit of the parties in relation to:a.) Preparation of meals,
b.) Washing and mending clothes,Shopping,
c.) Household maintenance,
d.) Any other domestic services?
- Social:
a.) Did they participate together or separately in neighbourhood and community activities?b.) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
- Societal:
a.) What was the attitude and conduct of the community towards each of them and as a couple? - Support (Economic):
a.) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?b.) What were the arrangements concerning the acquisition and ownership of property?
c.) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
- Children
a.)What was the attitude and conduct of the parties concerning children?
In August of 2024, Justice H.J. Williams in Cassan v. Giroux, applied this applied this legal matrix against a slightly out of the ordinary fact situation. The surviving common law wife argued that she and the deceased had lived in a conjugal relationship for 16 years. The deceased’s children pointed out that the applicant common law spouse had always maintained her own apartment, neither she or the deceased had ever filed an income tax return showing anything other than a single tax status and indeed the deceased had throughout the relationship continuously had relationships with other women and had made financial provision for some of these other women.
The court went through the evidence, applied the various factors from Molodowich and found despite these negative indicators that the parties indeed had lived in a conjugal relationship, the formal term for living in a common law relationship. Support was ordered.
