Who is Your Spouse

Alan Kay

By Alan S. Kay, B.Comm, M.B.A., LL.B., Partner at McMaster, McIntyre & Smyth, LLP

“Who is your spouse?”.   For many, it is a trick question because under Ontario law, a person may be your spouse for one purpose but not your spouse for another purpose and someone you thought is no longer your spouse may still be your spouse.

Let no one put asunder

For those of you who took the plunge and are married – did the “I do’s” and got the certificate to prove it, then, so long as it was done legally, you are spouses.  And you continue to be spouses until one of you dies or you get a divorce.  There is no period of separation that terminates a marriage.  You can be separated for thirty years and you will still be married spouses. Further, if you got a divorce outside of Canada, you could still be married under Canadian law.

I thought it’s the same thing

For those of you who live together but are not legally married, there is no period of cohabitation that makes you married.  However, you may or may not be spouses.

There are various definitions in Ontario and federal law and they are not all the same. You can be spouses under the federal Income Tax Act but not spouses under Ontario law.  Under Ontario law, you can be spouses for one purpose and not another.  There are several examples of multiple definitions of spouse within the same Ontario statute – some include certain unmarried cohabitants and the others exclude them.     

What about my estate?

Let’s look at common-law couples in the context of estates. With a Will, you can choose how to involve your common-law partner in your estate. Generally, you are free to structure your affairs in a way that suits your needs.  

On the other hand, if a person dies without a will (called an “intestacy”), his or her estate is subject to default rules of administration.  When there is an intestacy, a surviving common-law spouse: 1) has a right to apply to be an estate trustee because he or she is a spouse for that purpose, 2) is not entitled to inherit from the estate because he or she is not a spouse for that purpose, and 3) can make a claim against the estate for dependent support because he or she is a spouse for that purpose.

Whether there is a Will or not, married spouses have a right to elect to receive a certain minimum from the deceased spouse’s estate. Common-law spouses do not have that right.

As you can see, it is vitally important to create a Will – particularly if you are in a common-law relationship or if you are not sure whether you are still married.