Globe and Mail

Common law does not equal married

Globe and Mail Update with Canadian Press
Thursday, December 19 – Online Edition, Posted at 10:58 AM EST
The Globe and Mail

Canada's top court ruled Thursday that common-law spouses shouldn't be treated like married couples when it comes to dividing their property after a break up.

The Supreme Court of Canada ruled 8-1 that a Nova Scotia law requiring divorcing couples to split assets evenly should not apply to common-law couples.

"The decision to live together is insufficiently indicative of an intention to contribute to and share in each other's assets and liabilities," the judgment said. "While many unmarried cohabitants have agreed as between themselves to live as economic partners for the duration of their relationship, it does not necessarily follow that these same persons would agree to restrict their ability to deal with their own property during the relationship or to share in all of the other's assets and liabilities following the end of the relationship."

The ruling stems from the 1995 breakup of Susan Walsh and Wayne Bona. The common-law couple lived together for 10 years in Nova Scotia and had two sons.

Ms. Walsh wanted half the family assets. But Nova Scotia's Matrimonial Property Act, like similar legislation in most provinces, requires only married couples to split assets 50-50.

"The Charter does not require that the legislature treat married and unmarried couples identically," the judgment reads. "To extend the presumption of equal division of matrimonial assets to common-law couples would be to intrude into the most personal and intimate of life choices by imposing a system of obligations on people who never consented to such a system. To presume that common-law couples want to be bound by the same obligations as married couples is contrary to their choice to live in a common-law relationship without the obligations of marriage."

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

Ms. Walsh argued that the act breached equality rights under the Charter of Rights and Freedoms.

She lost at the Supreme Court of Nova Scotia but won on appeal.

The court's ruling could shape provincial laws that vary widely on how common-law assets should be split.

Ontario, New Brunswick, Prince Edward Island and Newfoundland lack specific rules on the topic.

Ms. Walsh and Mr. Bona ultimately agreed to share assets 50-50 and will not be affected by the judgment.

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