When a person dies without a will, that person’s spouse has a right to inherit part or all of the estate. Traditionally, provincial intestacy laws have not explicitly included common law spouses within the legal term “spouse”. Courts have narrowly interpreted “spouse” to mean one person legally married to another person.
Some see this as inequitable, given that more couples today are choosing to live together without getting married. For example, Statistics Canada reported that in 1981 only 6.3% of Canadians aged 25 to 64 were in a common law relationship. By 2016, this number had increased by more than three times to 21.3%.
Courts across the country have recognized this trend but have struggled to interpret common law spouses’ statutory and constitutional rights in intestacy. In the recent decision Jackson Estate v. Young, 2020 NSSC 5, the Nova Scotia Supreme Court addressed three important issues: 1) does the Intestate Succession Act include common law spouses; 2) if not, does the exclusion of common law spouses from intestate inheritance violate section 15(1) of the Charter; and 3) what if any equitable rights were owed to the surviving spouse?
In Jackson Estate, Judy Jackson and Bill Young began a relationship in 2004. Both were previously divorced. After several years, Bill moved in with Judy. They lived at Judy’s house, which was solely owned by Judy. The two shared cooking, cleaning and yardwork. Bill completed repairs on the home and contributed to the household expenses. He withdrew his retirement savings of $26,000 and cared for Judy while she was ill. They planned to marry when their finances straightened out, but the couple never did.
In early August 2017, Judy was hospitalized and diagnosed with brain cancer. Three weeks later, she died intestate. By that point, their house was in complete disrepair with mould covering the walls, a leaking roof and old electrical wiring. In 2018, Judy’s two estranged daughters became the estate administrators and ordered Bill to vacate the house. He refused.
The daughters filed an application to remove Bill from the property. Bill filed a notice of contest and a claim in probate court. He argued that he was a “spouse” for the purposes of the Intestate Succession Act and therefore he should be entitled to inherit Judy’s property. He further argued that excluding common law spouses under the Act violated his section 15(1) Charter rights, and that he had an equitable interest in the property under the doctrine of unjust enrichment.
The Supreme Court held that the Nova Scotia legislature did not intend to include common law spouses within the term “spouse” under the Intestate Succession Act. Justice McDougall concluded that, under the Act, an intestate’s intention for a cohabiting partner to inherit upon the intestate’s death was expressed through the conscious act of marriage. Cohabitating couples could also inherit under the Act by registering a domestic partnership with the province, which Bill and Judy did not do. Consequently, Bill as a common law spouse could not inherit Judy’s estate.
On the Charter claim, Justice McDougall ruled that the Intestate Succession Act’s definition of “spouse” violated s. 15(1) of the Charter in part because it created a distinction that perpetuated the effects of historical disadvantage rooted in prejudice. However, the violation was justified under s. 1 of the Charter. While Bill might be left economically vulnerable after Judy’s death, the couple had other options to consider such as joint title on the property, a valid will or an inter vivos gift. Ultimately, the Court dismissed the unjust enrichment claim for lack of evidence that Bill contributed equally to the house expenses or conveyed any benefit to the Estate. The Court ordered Bill to vacate the property within 90 days.
Nova Scotia’s Intestate Succession Act is consistent with Ontario’s Succession Law Reform Act. The SLRA adopts the definition of “spouse” from Ontario’s Family Law Act, which restricts “spouse” to married couples. A common law spouse cannot inherit a share of the deceased’s estate. However, that person can make a claim for relief as a dependant of the deceased by virtue of s. 57 of the SLRA. For the purpose of these claims, the definition of spouse is expanded to include a common law spouse.
In other provinces, the exclusion of common law spouses from property rights appears to be changing. Alberta and Manitoba have enacted legislation allowing common law partners to share in the deceased’s estate upon intestacy. And Nova Scotia is now redrafting its Matrimonial Property Act to give common law couples the right to divide assets upon separation.
Jackson Estate may seem to be a harsh result for the surviving spouse. It stands as a reminder of the importance of estate planning and an awareness of the applicable statutory regime in Ontario.
Jonathan White is a member of the Estate Litigation practice group and author of this blog. If you have a question about a common law spouse’s entitlement to an estate, please contact Jonathan at 416-777-5204.