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Spouse vs Common Law Spouse – A Constitutional Question


In Jackson Estate v. Young, 2020 NSSC 5, The Supreme Court of Nova Scotia was tasked with determining whether the exclusion of common law spouses from Nova Scotia’s Intestate Succession Act, RSNS 1989, c. 236 (the “Act”) constituted an infringement of section 15(1) of the Canadian Charter of Rights and Freedoms (the “Charter”).


Judith Marie Jackson (“Judy”) died intestate on August 26, 2017. At the time of her death, she was in a common law relationship with William Young (“Bill”). Judy had two daughters from her previous marriage – Laura Kelly and Sarah Barnes (collectively referred to as the “daughters”).

The relationship between Judy and Bill began in or around 2004. Several years later Bill moved into Judy’s home located at 327 Craig Road (the “Property”). Though Judy and Bill were engaged to be married in 2009, no wedding ever took place.

Following Judy’s death, the daughters applied for and were issued a grant of administration of Judy’s estate. Accordingly, the Property was transferred to the daughters as personal representatives of Judy’s estate. The daughters asked Bill to vacate the Property on numerous occasions but he refused to leave.

The daughters filed an application seeking, amongst other things, an order requiring Bill to vacate the Property. Bill filed a notice of contest and a notice of respondent’s claim taking the position that he was a “spouse” for the purposes of the Act and was therefore entitled to inherit Judy’s property. In the alternative, Bill took the position that the exclusion of common law spouses under the Act infringed s. 15(1) of the Charter.

Statutory Interpretation

Upon a thorough application of the modern principle of statutory interpretation, it was determined that the purpose of the Act is to provide a standard system of distribution of the estate of a person who dies without a will, based on the presumed intention of the intestate. Furthermore, the purpose of the surviving spouse’s preferential share is to prevent a surviving spouse from being left in poverty following the death of their husband and wife.

With respect to the meaning of “spouse” as it coincides with the Act, the court determined that the legislature intended for the word to refer to an individual who was legally married to the intestate and that the legislative history of the Act allowed for no other conclusion.

Is the Exclusion of Common Law Spouses Unconstitutional?

Relying on Quebec v. A, the parties agreed that the exclusion of common law spouses from the definition of “spouse” under the Act violated s. 15(1) of the Charter. Specifically, the court stated that the Act denies unmarried spouses the right to inherit from a spouse who dies intestate – a right that is available to married spouses. On that basis, the court held that the law creates a distinction based upon the analogous ground of marital status.

Section 1 Analysis

The question of whether the infringement of Bill’s rights under s. 15(1) was justified under section 1 of the Charter, was examined through application of the Oakes test. The Estate postured and the court agreed that the intended objective of the Act was to preserve choice and individual autonomy. Furthermore, the court held the distinction made between married and common law spouses was rationally connected to the objective of preserving the autonomy and freedom of choice of spouses.

With respect to minimal impairment, though the court acknowledged other conceivable alternatives that would impair Bill’s s. 15(1) rights to a lesser degree, it was determined that they would not be as effective in promoting the goals of maximizing choice and autonomy. The court noted numerous other circumstances where a common law spouse could be granted rights to property, such as, inter vivos gifts or conveyance of title.

With respect to the proportionality analysis, the court acknowledged the potentially severe impact the Act poses on common law spouses like Bill, who may be left economically vulnerable or disadvantaged following the death of a partner. However, the court ultimately held that in light of the Supreme Court of Canada’s findings in Quebec v. A, the violation of s. 15(1) in this case was justified under s.1.


With the increasing prevalence of common law relationships, one must wonder how long it will take for this absence of statutorily imposed rights for common law spouses to tip the scales in favor of those who the law fails to recognize because they are not in “legally married” relationships.

For now, this decision, at the very least, should reinforce for those in common law relationships, to make sure they have a proper estate plan.

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.


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