canada.com

Thursday, December 19, 2002

Jilted common-law partners can't count on 50-50 split of assets: high court

SUE BAILEY
Canadian Press
canada.com

OTTAWA (CP) - If your common-law love affair goes bust, don't count on getting half your ex-mate's assets, says the top court. The Supreme Court of Canada ruled 8-1 Thursday that a Nova Scotia law requiring divorcing couples to evenly split assets shouldn't ensnare common-law couples.

The court stressed that those who hit the altar explicitly accept property rules. Others should be allowed to avoid such strings. "In my view, people who marry can be said to freely accept mutual rights and obligations," wrote Justice Michel Bastarache for the majority.

"A decision not to marry should be respected because it also stems from a conscious choice of the parties."

The ruling overturns a Nova Scotia Court of Appeal judgment, which found that a section of the province's Matrimonial Property Act unjustifiably breached equality rights.

The act requires married spouses to share most assets 50-50 upon divorce, but excludes common-law couples.

Susan Walsh, who lived common-law in Nova Scotia with Wayne Bona for 10 years until 1995, wanted half the family assets.

The property act violated her equality rights under the Charter of Rights and Freedoms by treating her relationship differently, she argued.

The high court majority disagreed.

Unmarried couples can sign a contract or subject themselves to other laws that force equal division of personal property, Bastarache wrote.

For example, the 2000 appeal court decision spurred Nova Scotia to pass domestic partnership legislation.

It allows common-law and same-sex couples to register their relationship with the province - if they choose. Registration places couples under the Matrimonial Property Act and other laws governing married spouses.

Even without that change, the act would not be unconstitutional for excluding common-law couples, Bastarache said.

Nova Scotia had asked the high court to reverse the appeal court judgment, arguing governments can't impose marital duties on those who don't tie the knot.

Walsh's lawyer, Kathy Briand, countered that provinces already include common-law couples under support and alimony legislation.

Common-law spouses should have the same protections for property division, she argued.

Bastarache agreed that those with no wedding ring will sometimes lose out when love ends.

But the risk of less protection for some partners does not warrant eliminating freedom of choice to avoid marriage and its ties, Bastarache concluded.

"That assumes a level of equality that is just not present in many sexual relationships," said Carole Curtis, a family lawyer in Toronto.

"I really think it's an analysis at odds with what living together is actually like."

The judgment will guide provinces still grappling with related laws. Most have legislation that only compels married couples to share assets evenly.

Common-law partners are typically allowed to sue only for the share of wealth to which they contributed.

Saskatchewan, Nunavut and the Northwest Territories require a 50-50 asset split for common-law couples who break up.

British Columbia, Quebec and Nova Scotia allow unmarried couples to register or agree to respect such laws.

Ontario, Alberta, Manitoba, Yukon, New Brunswick, Prince Edward Island and Newfoundland require 50-50 asset sharing for married couples only.

Walsh and Bona had already reached a deal on how to split their wealth, and won't be affected by the judgment.

The 2001 Census showed that married couples still account for about 70 per cent of Canadian families. Common-law couples make up 14 per cent.

Dissenting Justice Claire L'Heureux-Dube, now retired, found the Nova Scotia property law unjustifiably breaches equality rights.

Many people live common-law because their partner offers no other choice, she said.

"To deny them a remedy because the other partner chose to avoid certain consequences creates a situation of exploitation."

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