What are the Rights of a Common Law Spouse in Alberta?

Richmond Tymchuk Family Law

What are the Rights of a Common Law Spouse in Alberta?

Richmond Tymchuk Family Law

Common law couples have rights during the dissolution of their relationship or the passing of one of the partners. These rights are not always the same as or as clear as those rights of a married couple.

In Alberta, your common law relationship may give you certain rights if your relationship dissolves or if your partner passes away. In order for these rights to apply to you, your relationship must meet the requirements to be considered a common law relationship.

What are the requirements for a relationship to be considered common law?

The Province of Alberta has legislated which relationships are considered common law relationships under the Family Law Act and the Wills and Successions Act.  In order for your relationship to fall under common law rights, you must be characterized as an Adult Interdependent Partner (AIP).

What is an AIP (Adult Interdependent Partnership)?

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

In some cases, there may be a dispute as to whether a relationship should be characterized as an Adult Interdependent one. If this applies to your situation, the courts will embark into an evidentiary inquiry as to whether the 2 persons were functioning as an economic and domestic unit.

Some of the issues that this inquiry will review evidence on are the physical and emotional nature of the relationship, the conduct and habits of the persons in the household, 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.

Rights of Common Law Couples in Alberta

When considering the rights of common law couples in Alberta, you can generally consider 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.

If 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.

Rights of a Common Law Couple at the End of a Relationship

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

Inheritance Rights of a Common Law Couple

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 in regards to potential income or taxation based on their relationship status.

What Property Rights do Common Law Couples Have in Alberta?

Unmarried couples have no statutory property rights. While married couples enjoy a presumption of equal division of matrimonial property during a divorce, this does not automatically apply to unmarried couples.

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. These were outlined by the Supreme Court of Canada in its Kerr v. Baranow, 2011 SCC 10, decision.

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.

What is Joint Family Venture (JFV)?

The Supreme Court of Canada offers a bit of flexibility in relation to the remedies available once the case for an unjust enrichment has been met by introducing the idea of a Joint Family Venture (“JFV”).

The direction from the Supreme Court of Canada 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.

As with determining an Adult Interdependent Partnership, determining a Joint Family Venture will consider the evidence regarding the habits, behaviours, and arrangements between the unmarried partners.

To learn more about the legal rights and entitlement to property as a common law couple, refer Contact Us to speak to one of our experienced Family Lawyers in Calgary.

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