B. Legal Consequences of Unmarried Cohabitation as Compared to Marriage

Author:Julien D. Payne - Marilyn A. Payne

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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. The social stigma that formerly attached to unmarried heterosexual cohabitation has now largely disappeared. The law has, nevertheless, been cautious in its response to unmarried cohabitation. The law does not assimilate the consequences of marriage and unmarried cohabitation, although legal recognition has been extended to unmarried cohabitation in various contexts in light of the judgments of the Supreme Court of Canada in Miron v Trudel4 and M v H.5In 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.

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In July 2000, the federal government passed omnibus legislation, entitled 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,6which amended the Family Law Act so that its support provisions apply to same-sex couples as well as opposite-sex couples. The provisions of the Family Law Act with respect to cohabitation agreements, separation agreements, and claims for damages by family dependents 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,7the Child and Family Services Act,8the Children’s Law Reform Act,9the Courts of Justice Act,10the Family Responsibility and Support Orders Arrears Enforcement Act, 1996,11the Pension Benefits Act,12and the Succession Law Reform Act.13It 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.14Other provinces and territories have introduced amendments to their legislation to bring them in line with the ruling of the Supreme Court of Canada in M v H.15The Canadian Charter of Rights and Freedoms16and federal and provincial human rights codes have generated claims by unmarried cohabitants of the same sex to benefits that...

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