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Should You Be Able to Share in Your Common Law Partner’s Intestate Estate?

1. Introduction

Most of the amendments to the Succession Law Reform Act,[1] that were made by the Accelerating Access to Justice Act, 2021,[2] took effect on 1 January 2022. The estates bar has become reasonably familiar with them by now. There are obviously questions about the meaning of some of the provisions and how the court will apply the amendments, but they will be answered over time.

While I am delighted with the amendments, I believe that the SLRA is due for a major revision. The Act is more than 40 years old, and it is showing its age because it has not kept up with societal changes. There have been some amendments to it over the years, but they have resulted in a patchwork of provisions that has rendered the Act far from perspicuous in many respects. So, I hope that a major revision will happen in the foreseeable future.

2. Common Law Partners

In this blog I should like to explore a possible amendment to the SLRA that would allow common law spouses to be able to share in their partners’ intestate estates. For now, in Ontario, only married spouses have that right.[3] All of the western provinces and territories allow common law partners to share in their partner’s estate.[4] Thus, we have plenty of models to consider and that is what I shall now do. In addition, In Nova Scotia, when a person, who lives together with another person in a conjugal relationship, registers a domestic-partner declaration under the provisions of the Vital Statistics Act,[5] she has the same rights as a spouse under the Intestate Succession Act[6] and under other statutes.

Note that when I speak of the right of a common law partner to ‘share’ in her intestate partner’s estate I mean only that she can share with descendants of the intestate. There is another sense of share as well and that is whether a surviving common law partner can share with the intestate’s surviving spouse. As explained below, only a small number of western provinces make provision for such sharing by more than one ‘spouse’. The recent British Columbia case, Boughton v Widner Estate,[7] is an example of such sharing between a wife and a common law partner. Both were treated as ‘spouses’ under WESA and therefore both had a right to share in the estate.

The western statutes do vary in their provisions, in some cases significantly. Moreover, their definitions of common law spouses also vary. They speak variously of common law spouses, marriage-like relationships, adult interdependent partners, and other terms. To make things simpler, and without intending to belittle the various definitions,[8] I shall use the following uniform terms: ‘spouse’ for a person who was married to the intestate or ‘surviving spouse’ after the intestate’s death; and ‘common law partner’ for a person who was in a marriage-like relationship with the intestate or ‘surviving common law partner’ after the intestate’s death.

3. Overview of Western Statutes

This is a summary of the various statutes as regards the rights of a spouse and a common law partner. Please note that the summary focuses on the right of a common law partner to share in the intestate estate of his partner. I do not, therefore, provide a detailed summary of the rest of the statutes’ provisions. However, I point out that some of the statutes deny a right to share if the spouse or common law partner and the intestate are separated.

The share to which a spouse and a common law partner are entitled varies depending upon the number of children that survive the intestate, but I draw attention to the fact that in Alberta, British Columbia, and Manitoba the surviving spouse or surviving common law partner will take either a larger preferential share or the entire estate if the surviving children are the children of both the intestate and the surviving spouse or surviving common law partner than if the surviving children are not the children of either the surviving spouse or surviving common law partner.

Alberta permits a spouse or a common law spouse to share in the intestate’s estate. If the intestate is survived by both a spouse and a common law partner, the spouse and the common law partner are each entitled to one-half of the share allotted to a ‘spouse’ by the Act in those circumstances, which is subject to the rights of any descendants. (Alberta Act, ss. 61 and 62).

British Columbia provides that if two or more persons are entitled to a spousal share, they share it equally if they agree or otherwise as the court determines. The spousal share is a preferential share and a distributive share. The preferential share varies in amount depending upon whether or not descendants are descendants of the intestate and the surviving spouse or surviving common law partner (British Columbia Act, ss 21 and 22).

Manitoba defines ‘common law partner’ of an intestate to mean a person who with the intestate registered a common-law relationship under the Vital Statistics Act,[9] or cohabited with the intestate in a conjugal relationship for the period prescribed by the legislation. The legislation provides that if the intestate is survived by both a spouse and one or more common law partners, the spouse or common law partner whose relationship with the intestate was most recent takes over the other or others (Manitoba Act, ss 1(1) and 3(3)).

Saskatchewan’s legislation also defines ‘spouse’ to include a legally married spouse or a common law partner (Saskatchewan Act, ss 2, 6). The spouse’s share consists of what is in effect a preferential share plus a distributive share that varies with the number of children that survive. The Act makes no provision for when the intestate is survived by a spouse and a common law partner.

The Northwest Territories legislation is very similar to Saskatchewan’s. It also makes no provision for when the intestate is survived by a spouse and a common law partner (Northwest Territories Act, ss 1 and 2).

The Nunavut legislation is very similar to that of the Northwest Territories. However, the preferential share is less (Nunavut Act, ss 1 and 2).

The Yukon legislation is different. It defines the term ‘common law spouse’ but does not give the common law spouse a right to share in the intestate’s estate. Instead, the court has power to make an order that so much of the intestate’s net real or personal estate, or both, as the court sees fit, shall be awarded as an allowance to the common law spouse. The rest goes to the spouse and issue (Yukon Act, ss 1, 74, and 80-82).

Thus, while Alberta, British Columbia, and Manitoba permit sharing or all or part of the estate between a surviving spouse and a surviving common law partner, Saskatchewan, Northwest Territories, and Nunavut allow either a surviving spouse or a surviving common law partner to take but do not provide for sharing if there is more than one ‘spouse’. And Yukon does not allow a common law partner to share in the estate, but instead gives the court power to order an allowance in favour of a common law spouse.

4. Which Should We Choose?

With such a large selection of statutory models before us, which should we choose for Ontario? I think that the ones that do not give a right to a common law partner to share with a surviving spouse should not be followed. So that leaves the Alberta, British Columbia, and Manitoba legislation. I like aspects of all of them but find the British Columbia legislation rather complex. Besides, I find the sharing section strange in that I suspect most spouses and common law partners are unlikely to agree to apportion the estate between them. And I would rather not give the court the casting vote. Thus, I prefer the Manitoba legislation. It is simple but certain: only one person is entitled. A good alternative is Alberta’s legislation, which gives both parties an equal share. I am aware that my preference is a very personal one and others may favour of a different solution, which is fine.

Regardless of which model we choose, support claims that survive against the intestate will have to be protected and given priority. The recent addition to the SLRA of s. 43.1 referred to above, will also have to be adjusted to apply to common law spouses. As mentioned above, some of the Western statutes make similar provisions for separated spouses and common law partners.

5. Other Desirable Reforms

Of course, the SLRA is not the only statute that ought to be revised. There are several other legislative changes that I should like to see. Here is my inexhaustive list:

  1. Enact the Uniform Trustee Act, 2012,[10] albeit with some changes. Thus far only New Brunswick has adopted it, though not in its entirety.[11] We should do so too. It is a great improvement on current, outdated, legislation. It also incorporates revisions to variation of trusts legislation.
  2. Repeal the law of perpetuities, including the Perpetuities Act,[12] and the law of accumulations as inscripturated in the Accumulations Act.[13] Some provinces have got rid of these and for good reason. We no longer need them.
  3. Repeal the Settled Estates Act.[14] As a dutiful ‘colony’, Ontario enacted it in the 19th century as a copy of an early English version of an eponymous English Act. But since we never had settled estates in Ontario it made no sense to import it here and in fact it is not used.
  4. Enact the Uniform Benevolent and Community Crowdfunding Act promulgated by the Uniform Law Conference of Canada in 2020.[15] It supplanted the Uniform Informal Public Appeals Act of 2011.[16] Saskatchewan was the only province that enacted the latter and applied it effectively to address issues regarding the large surplus raised in response to the Humboldt Broncos traffic accident. Without such legislation a court will have great difficulty in resolving such issues. A similar event will undoubtedly happen here at some point. And what (without such legislation) will poor robin do then, poor thing?
  5. Repeal the Estate Administration Tax Act, 1998.[17] The tax it raises is small and it is a bureaucratic nightmare.
  6. Modernize the laws governing the administration of estates. That means enacting one modern Administration of Estates Act that incorporates the substance of the current Estates Act,[18] and the Estates Administration Act,[19] but thoroughly revises it and brings it into the 21st century. At the same time, I hope that this will lead to the abolition of the unfortunate term ‘estate trustee’ and the full restoration of the terms ‘executor’ and ‘administrator’ in the Rules of Civil Procedure.

[1]    RSO 1990, c. S.26 (‘SLRA’).

[2]    SO 2021 c 4, Sched 9 (‘AAJA’).

[3]    Unless the ‘spouses’ are separated when one of them dies. See SLRA, s. 43.1, added by the AAJA, Sched 9, s 6.

[4]    These are the statutory provisions that define ‘spouse’ to include a common law partner. I shall refer to the statutes hereafter without further citation.

Intestate Succession Act, C.C.S.M., c. I85, s. 1(1); R.S.N.W.T. 1988, c. I-10, s. 1(1) [which incorporates the definition of “spouse” in s. 1(1) of the Family Law Act, S.N.W.T. 1997, c. 18]; R.S.N.W.T. (Nu.) 1988, c. I-10, s. 1(1), as amended by S. Nu. 2011, c. 25, s.13 [which incorporates s. 1(1) of the Family Law Act, S.N.W.T. (Nu.) 1997, c. 18, which was itself amended by S. Nu. 2011, c. 25, s. 8]; Intestate Succession Act, 2019, S.S. 2019, c. I-13.2, s. 2; Estate Administration Act, R.S.Y. 2002, c. 77, s. 1; Wills and Succession Act, S.A. 2010, c. W-12.2, s. 1.1(1)(a) [which incorporates the definition of “adult interdependent partner” of s. 1(1)(a) of the Adult Interdependent Relationships Act, S.A. 2002, c. A-4.5]; Wills, Estates and Succession Act, SBC 2009, c 13, s. 2 (‘WESA’).

[5]    RSNS 1989, c 494, s 54.

[6]    RSNS 1989, c 236.

[7]    2021 BCSC 325.

[8]    Of course, I recognize that Alberta uses the unique term ‘adult interdependent partner’ instead of ‘common law partner’.

[9]    CCSM c V60. This is like the Nova Scotia provision mentioned above.

[10]   https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Trustee-Act_1.pdf.

[11]   Trustees Act, SNB 2015, c 21.

[12]   RSO 1990, c P.9.

[13]   RSO 1990, c A.5.

[14]   RSO 1990, c S.7.

[15]   https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Benevolent-and-Community-Crowdfunding-Act_2.pdf. See also my blog, http://welpartners.com/blog/2020/08/the-uniform-benevolent-and-community-crowdfunding-act/.

[16]   https://www.ulcc-chlc.ca/ULCC/media/EN-Uniform-Acts/Uniform-Informal-Public-Appeals-Act-(Common-Law)_2.pdf.

Full disclosure, I was a member of both Working Groups which prepared the reports that led to the promulgation of the Uniform Acts. See also my blogs, http://welpartners.com/blog/2018/07/public-appeals/, and  http://welpartners.com/blog/2018/08/public-appeals-update-on-the-humboldt-broncos-memorial-fund/.

[17]   SO 1998, c 34, Sched.

[18]   RSO 1990, c E.21.

[19]   RSO 1990, c E.22.

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