Cohabitational Relationships

AuthorJulien D. Payne,Marilyn A. Payne
Date25 July 2022
Chapter 3
Cohabitational Relationships
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: 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://;
2017 CanLIIDocs 272,; 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 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
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.

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