Chapter 3: Cohabitational Relationship

• Date: 14 April 2025

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 

Cohabitational Relationships

A. INTRODUCTION

Cohabitational relationships1 usually involve two people2 who share their lives together but are

not married to each other. Cohabitational relationships may involve members of the opposite

sex or members of the same sex. Unmarried heterosexual cohabitation is sometimes referred

to as a common law relationship.

B. LEGAL CONSEQUENCES OF UNMARRIED COHABITATION AS

COMPARED TO MARRIAGE

In previous generations, unmarried cohabitants were disentitled to the protection of the law.

By the 1980s, social attitudes and the law had undergone radical changes, at least with respect

to unmarried cohabitants of the opposite sex. Legal recognition of same-sex cohabitants came

in the 1990s as a result of legal challenges made under the equality provisions of section 15

of the Canadian Charter of Rights and Freedoms. e social stigma that formerly attached to

 See generally, Winifred H Holland & BarbroE Stalbecker-Pountney, Cohabitation: e Law in Canada

(Toronto: Carswell, –). As to the possibility of extending legal rights and obligations to a broader

range of personal relationships, see Law Commission of Canada, Dis cussion Paper, “Recognizing and

Supporting Close Personal Relationships Between Adults,” online: https://dalspace.library.dal.ca/handle/

/. And see Andrew Morrison, “Who Is Family?: Cohabitation, Marriage, and the Redenition of

Family” ()  Can J Fam L .

 But see John-Paul Boyd, “Polyamorous Relationships and Family Law in Canada” Canadian Research

Institute for Law and the Family (April ) and John-Paul Boyd, “Perceptions of Polyamory in Canada”

Canadian Research Institute for Law and the Family (December ); John-Paul E Boyd, “Polyamory in

Canada: Research on an Emerging Family Structure,” online: Vanier Institute of the Family,

https://vanierinstitute.ca/polyamory-in-canada-research-on-an-emerging-family -structure; 

CanLII Docs , www.canlii.org/t/g; Rebecca M Bromwich, “‘A Beautiful Mess: A Splendid Adven-

ture’ Love, Marriage, and Polygamy, after Blackmore and Re C.C.: Time to Reconsider Criminalization of

Polygamy” ( June ), online: CanLII Connects https://canliiconnects.org/en/commentaries/.

See also British Columbia Birth Registration No 2018-XX-XX5815,  BCSC ; Re CC,  NLSC .

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unmarried cohabitation has now largely disappeared. e law has, nevertheless, b een piece-

meal in its response to unmarried cohabitation. It does not generally assimilate the conse-

quences of marriage and unmarried cohabitation, but legal recognition has been extended to

unmarried cohabitation in a wide variety of contexts in light of the judgments of the Supreme

Court of Canada in Miron v Trudel3 and M v H.4 In consequence of M v H, federal, provincial,

and territorial statutes have established diverse rights and obligations as between unmarried

cohabitants of the opposite sex and unmarried cohabitants of the same sex. In July 2000,

the federal government passed omnibus legislation, titled the Modernization of Obligations

and Benets Act, which amended sixty statutes for the purpose of assimilating the rights

and obligations of same-sex couples and opposite-sex couples. In 1999, Ontario enacted

the Amendments Because of the Supreme Court of Canada Decision in M v H Act,5 which

amended the Family Law Act so that its support provisions apply to same-sex couples as well

as opposite-sex couples. e provisions of the Family Law Act with respect to cohabitation

agreements, separation agreements, and claims for damages by family dep endants were

also amended to include same-sex cohabitants. Various other rights and obligations under

Ontario statutes were also extended to same-sex couples, namely, the Change of Name Act,6

the Child and Family Services Act,7 the Children’s Law Reform Act,8 the Courts of Justice Act,9

the Family Responsibility and Support Orders Arrears Enforcement Act, 1996,10 the Pension

Benets Act,11 and the Succession Law Reform Act.12 It is noteworthy, however, that spousal

property rights and intestate succession rights in Ontario have not been extended to either

same-sex or opposite-sex unmarried cohabitants.13 In Quebec (Attorney General) v A,14 the

Supreme Court of Canada rejected a Charter challenge of several articles in the Civil Code

of Québec that deny interspousal property and support rights to de facto spouses , that is,

couples who are neither married nor parties to a civil union in Quebec.

 []  SCR  (spouse judicially redened pursuant to s of the Canadian Charter of Rights and

Freedoms to include unmarried heterosexual cohabitants of three years’ standing under automobile

insurance policy).

 []  SCR  (assimilation of statutory support rights of cohabitants of the same sex with those of

cohabitants of opposite sex); and see Section D, below in this chapter. With respect to former unmar-

ried cohabitants of the opposite sex, compare Quebec (Attorney General) v A,  SCC , below in this

section.

 SO , c .

 RSO , c C..

 RSO , c C..

 RSO , c C..

 SO , c .

 SO , c .

 RSO , c P..

 RSO , c S..

 See the denition of “spouse” in section  of the Succession Law Reform Act, RSO , cS. and see

Lorne H Wolfson & Carol A Dalgado, “Some oughts on Family and Estates Matters After M v H

(Part I)” (February )  Money & Family Law at –; Lorne H Wolfson & Carol A Dalgado, “Some

oughts on Family and Estates Matters After M v H (Part II)”; “Testate and Intestate Succession and

Dependants Relief Post M. v H.” (March )  Money & Family Law at –. Compare section  of

the Wills, Estates and Succession Act, SBC , c  as amended, and see Knelsen Estate,  BCSC

. See also LeBlanc v Cushing Estate, NSSC (dismissal of Charter challenge).

  SCC . See also Droit de la famille — 201878,  QCCA .

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