Rights of Common Law Couples During a Break Up

We often hear the term “common law couples” used for non-married couples in Alberta.  Common-law couples have different rights than married couples upon the breakdown of a relationship.  The rights of unmarried persons in Alberta can be better explained by dividing them in two categories:

  1. the rights given to unmarried couples by legislation; and
  2. the property rights that may arise due to the parties’ contributions to the relationship.

The Province of Alberta has legislated who may access certain remedies due to the breakdown of a common law relationship under the Family Law Act and the Wills and Successions Act.  In order to access these rights, a person must be characterized as an Adult Interdependent Partner (AIP).  

Alberta has given rights to those that fall within the definition of an Adult Interdependent Partner:  Section 3 of the Adult Interdependent Relationship Act, SA 2002, c. A-4.5 defines an Adult Interdependent Partner (“AIP”) as a person who: has lived with another person in a relationship of interdependence:

  1. for a period of not less than 3 years, or of some permanence,
  2. if there is a child of the relationship by birth or adoption, or
  3. parties have entered into an agreement to be AIPs

If one party disputes that a relationship should be characterized as an Adult Interdependent one, the courts will embark into an evidentiary inquiry as to whether the 2 persons were functioning as an economic and domestic unit.

This will require evidence in relation to the physical and emotional nature of the relationship, the conduct and habits of the persons in the household and living arrangements, how the persons held themselves to others, and the degree in which they formalized their legal obligations and responsibilities towards the other.

The courts will also consider the contributions made to the other’s well-being, the degree of financial dependence and arrangements made for financial support. The ownership and acquisition of property will be considered, as well as how children were cared for and supported.

Once a couple has met the definition of an AIP, unmarried partners may access rights and remedies under Part 3 of the Family Law Act, SA 2003, c. F-4.5, and Part 3 of the Wills and Successions Act SA 2010M c. W-12.2.

Part 3 of the Family Law Act mostly deals with child support and AIP Support Rights. In other words, a finding that 2 persons were AIPs opens the door for a potential claim for support, but a finding that someone is entitled to partner support is not guaranteed.  The Family Law Act outlines the factors that a court is to consider if/when an AIP makes a partner support application.

The Wills and Successions Act deals with the distribution of intestate estates and gives an AIP, whose partner has passed away without a will, the potential ability to inherit from the deceased partner’s estate. By no means is this right to inherit guaranteed either, but the potential claim is only available to those who meet the definition of an AIP.

The Income Tax Act and pension legislation also prescribe further rights and obligations to unmarried partners.

 

There are no statutory property rights for unmarried couples, unlike married couples that enjoy a presumption of equal division of matrimonial property, among others.

The property rights and obligations of unmarried couples are dictated by the same rules that apply to other non-romantic relationships where unjust enrichment claims arise, as our Supreme Court outlines in its Kerr v. Baranow, 2011 SCC 10, decision.

In short, when:

  1. one party receives a benefit/enrichment,
  2. while the second party suffers a corresponding deprivation, and
  3. there is no juristic reason for the same, the second party may have claim against the first.

Once the case for an unjust enrichment has been met, the Supreme Court of Canada in Kerr gave our courts a bit of flexibility in relation to the remedies available to unmarried partners by introducing the idea of a Joint Family Venture (“JFV”). The direction from the SCC is that we are to consider the unmarried partners’: (1) mutual effort, (2) economic integration, (3) actual intent, and (4) priority of the family in establishing the existence of a JFV. The Supreme Court supplied us with some details of what evidence is needed to decide if a JFV exists by exploring the habits, behaviours and arrangements between unmarried partners.

To learn more about the legal rights and entitlement to property as a common law couple, refer RCMV Law’s Common Law Matters  resource or Contact Us to speak to one of our experienced Family Lawyers in Calgary.

About Author

Sean Moldowan

Sean grew up in Kelowna, and has always loved the Rockies. He received his BA with honours at the University of Victoria before heading to Ontario to attend Queen’s University where he completed his Juris Doctor.