Cohabitational Relationships

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

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Chapter 3

Cohabitational Relationships

A. INTRODUCTION

Cohabitational relationships1 usually involve two people who share their

lives together but are not married to each other.2 Cohabitational relation-

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, unmarried 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 recognition of same-sex cohabitants came in the 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 has 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 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 govern-

ment passed omnibus legislation, titled the Moder nization 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 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 the Family Law Act with respect to cohabitation agreements,

separation agreements, and claims for damages by family dependants 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 Chil-

dren’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 Success ion 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

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.

10SO 1996, c 31.

11RSO 199 0, c P.8.

12RSO 1990, c S.2 6.

13See 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