Cohabitational Relationships

• Jurisdiction: Canada
• Author: Julien D. Payne,Marilyn A. Payne
• Date: 25 July 2022

36

Chapter 3

Cohabitational Relationships

A. INTRODUCTION

Cohabitational relationships1 usually involve two people2 who share their

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

ships 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.

1 See, generally, Winifred H Holland & BarbroE Stalbecker-Pountney, Cohabitation: The

Law in Canada (Toronto: Carswell, 1990–). As to the possibility of extending legal rights

and obligations to a broader range of personal relationships, see Law Commission of

Canada, Discussion Paper, “Recognizing and Supporting Close Personal Relationships

Between Adults,” online: https://dalspace.library.dal.ca/handle/10222/10258. And see

Andrew Morrison, “Who Is Family?: Cohabitation, Marriage, and the Redef‌inition of

Family” (2015) 29 Can J Fam L 381.

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

Canadian Research Institute for Law and the Family (April 2017) and John-Paul Boyd,

“Perceptions of Polyamory in Canada” Canadian Research Institute for Law and the

Family (December 2017); John-Paul E Boyd, “Polyamory in Canada: Research on an

Emerging Family Structure,” online: Vanier Institute of the Family, online: https://

vanierinstitute.ca/polyamory-in-canada-research-on-an-emerging-family-structure;

2017 CanLIIDocs 272, www.canlii.org/t/285g; Rebecca M Bromwich, “‘A Beautiful

Mess: A Splendid Adventure’ Love Marriage, ad Polygamy, after Blackmore and Re

C.C.: Time to Reconsider Criminalization of Polygamy” (27 June 2018), online: CanLII

Connects https://canliiconnects.org/en/commentaries/62399. See also British Colum-

bia Birth Registration No 2018 -XX-XX5815, 2021 BCSC 767; Re CC, 2018 NLSC 71.

Chapter 3: Cohabitational R elationships 37

B. LEGAL CONSEQUENCES OF UNMARRIED COHABITATION

AS COMPARED TO MARRIAGE

In previous generations, unmarried cohabitants were disentitled to the pro-

tection of the law. By the 1980s, social aitudes and the law had undergone

radical changes, at least with respect to unmarried cohabitants of the oppos-

ite 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

aached to unmarried cohabitation has now largely disappeared. e law

has, nevertheless, been piecemeal in its response to unmarried cohabitation.

It does not generally assimilate the consequences of marriage and unmarried

cohabitation, but legal recognition has been extended to unmarried cohabit-

ation 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 govern-

ment passed omnibus legislation, titled the Modernization of Obligations and

Benef‌its 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 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

3 [1995] 2 SCR 18 (spouse judicially redef‌ined pursuant to s15 of the Canadian Charter

of Rights and Freedoms to include unmarried heterosexual cohabitants of three years’

standing under automobile insurance policy).

4 [1999] 2 SCR 3 (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 unmarried cohabitants of the opposite sex, compare

Quebec (Attorney General) v A, 2013 SCC 5, below in this section.

5 SO 1999, c 6.

6 RSO 1990, c C.7.

7 RSO 1990, c C.11.

8 RSO 1990, c C.12.

9 SO 1994, c 12.