Social conventions in Canada have evolved to the point where more and more couples are choosing to live together as common law partners. They share a home, finances and friends in arrangements that serve as trial marriages or that replace marriage altogether. Yet in Ontario, there is a huge distinction between common law partners and married couples in terms of property rights and entitlements upon death. This article looks at some important issues that common law partners should consider sooner rather than later.
Dying Without a Will
As the law currently stands in Ontario, common law partners are not entitled to anything under the Succession Law Reform Act if one of them dies without a will. The deceased partner’s property would go to their children, if any, or their relatives.
By contrast, a married spouse would have the following options under the intestacy rules:
(a) Elect an equalization payment of net family property under the Family Law Act;
(b) Take a preferential share of $200,000 and divide the balance with the deceased spouse’s children; or
(c) Make a claim for dependant support under Part V of the Succession Law Reform Act (this option can be exercised along with option (a) and (b) above).
This could also lead to an unfair outcome if the deceased common law partner was in the process of getting divorced. Take, for example, Gary and Solange who had been living together as common law partners for five years when Gary died. Gary was still married to Caroline at the time of his death but they were legally separated and had been leading separate lives for over a decade. They held off on getting a divorce because it was simply too expensive at the time. Notwithstanding their good intentions, since Gary died without a will, Caroline will inherit under the intestacy rules and Solange will get nothing.
Please log in to read the full article.