Cohabitational Relationships

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 35-54

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Chapter 3

Cohabitational Relationships

A. INTRODUCTION

Cohabitationa l relationships1 usual ly involve two people who share t heir

lives together but are not marr ied to each other.2 Cohabitational relat ion-

ships may involve members of the opposite sex or memb ers of the same sex.

Unmarried heterose xual cohabitation is sometimes referred to a s a common

law relat ionship.

B. LEGAL CONSEQUENCES OF UNM ARRIED

COHABITATION AS COMPARED TO MARR IAGE

In previous generations, un married cohabitants were disentitled to t he pro-

tection of the law. By the 1980s, socia l attitudes and the law had undergone

radical ch anges, at least with respect to unmar ried cohabitants of the oppos-

ite sex. Legal recog nition of same-sex cohabitants came in t he 1990s as a

result of legal cha llenges made under the equality prov isions of section 15 of

the Canadian Char ter of Rights and Freedoms. e social stigma that formerly

attached to unmarried cohabitation ha s now largely disappeared. e law

1 See, general ly, Winifred H Holla nd & BarbroE Stalbec ker-Pountney, Cohabitation: e

Law in Canada (Toronto: Car swell, 1990–). As to t he possibility of e xtending legal r ights

and obligation s to a broader range of person al relationships , see Law Commission of

Canada, D iscussion Paper, “Rec ognizing and Sup porting Close Perso nal Relationsh ips

Between Adults,” online: www.lcc.gc.ca.

2 But see John-Paul Boyd , “Polyamorous Relat ionships and Family L aw in Canada”

Canadian Resea rch Institute for Law and the Fa mily (April 2017) and John -Paul Boyd,

“Perceptions of Polya mory in Canad a” Canadian Research Instit ute for Law and the Family

(December 2017).

Canadi an family law36

has, neverthele ss, been piecemeal in its response to unmar ried cohabitation.

It does not generally assimi late the consequences of marri age and unmarried

cohabitation, but legal recognition has been extended to u nmarried cohabit-

ation in a wide variety of contexts in lig ht 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 terr itorial statutes have established diverse rights

and obligations as between unmarr ied cohabitants of the opposite se x and

unmarr ied cohabitants of the same se x. In July 2000, the federal govern-

ment passed omnibus legislation, titled the Moder nization of Obligations and

Benets Act, which a mended sixty statutes for the purpose of assimilating

the rights and obligations of same-sex couples a nd opposite-sex couples. In

1999, Ontario enacted t he Amendments Because of the Supreme Court of Canada

Decision in M v H Act,5 which amended t he Family Law Act so that its support

provisions apply to same-sex couples as well as opposite-sex couples. e

provisions of t he Family Law Act wit h respect to cohabitation agreements,

separation agreements, a nd claims for da mages by family dependants were

also amended to include sa me-sex cohabitants. Various other rights and

obligations under Ontar io statutes were also extended to same-se x couples,

namely, the Change of Name Act,6 the Child and Family Ser vices Act,7 the Chil-

dren’s Law Reform Act,8 the Courts of Just ice Act,9 the Family Responsibility

and Support Orders Arrears Enforcement Act, 1996,10 the Pension Benets Act,11

and the Success ion Law Reform Act.12 It is noteworthy, however, that spousal

property rig hts and intestate succession rights i n Ontario have not been

extended to either same -sex or opposite-se x unmarr ied cohabitants.13 In

3 [1995] 2 SCR 18 (spouse jud icially rede ned pursuant to s15 of the Canadian Charter

of Rights and Freedoms to i nclude unmarr ied heterosexua l cohabitants of three y ears’

standing u nder automobile insura nce policy).

4 [1999] 2 SCR 3 (assimi lation of statutory su pport rights of coha bitants of the same sex

with those of coh abitants of opposite se x); and see Section D, below i n this chapter.

With respect t o former unmarr ied cohabitants of the op posite sex, compare Quebec

(Attorney General) v A, 2 013 SCC 5, below in this sec tion.

5 SO 1999, c 6.

6 RSO 1990, c C.7.

7 RSO 1990, c C.1 1.

8 RSO 1990, c C.12.

9 SO 1994, c 12.

10 SO 1996, c 31.

11 RSO 199 0, c P.8.

12 RSO 1990, c S.2 6.

13 See the den ition of “spouse” in sec tion 1 of the Succession Law Refor m Act, RSO 1990, cS.26

and see Lorne H Wol fson & Carol A Dalgado, “S ome oughts on Family and E states

Matters After M v H (Part I)” ( February 2000) 15 Money & Fam ily Law at 9–12; L orne H

Wolfson & Carol A Da lgado, “Some oughts on Fam ily and Estates Matte rs After M v H