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On October 1, 2011, Gene Simmons of KISS and the former Playboy playmate Shannon Tweed, finally decided to take the plunge and tie the knot officially after cohabiting for a period of twenty-eight years. The delay in making the trip down the aisle can be attributed to Gene Simmons' reluctance as reports that "one major sticking point was Simmons's hesitations about marriage".

After twenty-eight years together, and two children, was it really necessary for the couple to make it official? Has anything really changed legally for them now that they are married to one another? In Ontario, the answer is yes. Although both married and common law spouses enjoy many of the same rights with regards to almost every aspect of their conjugal relationship, there are still some differences between the rights of cohabiting and married couples in Canada.

When it comes to spousal support, married and cohabiting couples have virtually the same rights under Ontario Law. For example, under s. 29 of the Family Law Act, and for the purposes of spousal support, spouse is defined as follows:

"spouse" means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each and have cohabited,

(a) Continuously for a period of not less than three years, or
(b) In a relationship of some permanence, if they are the natural or adoptive parents of a child.

Therefore, pursuant to this definition, individuals who are not married, but have lived together for a period in excess of three years or together parented a child can make a viable claim for spousal support. In the case of Gene and Shannon, who have been together for approximately twenty-eight years, it would be quite possible that spousal support would be ordered for an indefinite period time. Therefore, despite the fact that they were not married to one another, they may have been be financially tied to one another for the remainder of their lives.

Unlike spousal support, property rights for married couples are different from those of cohabiting couples. Pursuant to the Family Law Act, married couples are entitled to a division of property via an Equalization Payment, while cohabiting couples are not usually entitled to same. However, case law has stepped in and filled the gaps left by the Legislature thereby ensuring that common law spouses who have spent a significant amount of time, money and effort building a life together and accumulating assets in the name of either one or the other, do not miss out on the opportunity to share in the value of same.

Therefore, despite the fact that under s. 1(1) of the Family Law Act, a spouse is defined as:

"spouse" means either of two persons who,

(a) Are married to each other, or
(b) Have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right,

Cohabiting couples are still able to make claims for a constructive trust thus granting either individual an interest in or compensation for any contributions made to the acquisition, preservation or maintenance of property.

To clarify, a constructive trust allows an individual to share in the value of property (or acquire an interest therein) even though he or she does not hold legal title. This could be due to the fact that said individual has contributed to the value of the property through work, money, etc. which would make it unfair to deprive him or her from a share in the value, or increase in value, of the property.

The Supreme Court of Canada stated that courts will only impose a constructive trust once the following test is satisfied:

First, the principles of unjust enrichment must be satisfied:

1. There must be the enrichment of one of the spouses
2. A corresponding deprivation of the other spouse, and
3. No juristic or legal reason for the enrichment, such as:

  • Making a gift or
  • The presence of a contract

Once these principles are satisfied, a causal connection must be found between the contribution made and the property. If a connection is proved, then a constructive trust will result. More details regarding the law of constructive trusts and family law can be found in the recently released cases Kerr v. Baranow and Vanasse v. Seguin.

Lastly, and if all else fails, an attempt at a claim for unjust enrichment may be made. Here, the courts will simply apply the above mentioned test and then if unjust enrichment is found, the individual who was wrongly deprived of a benefit will get the value of his or her contribution.

Although legislation denies cohabiting spouses the automatic right to the division of property upon separation, the courts have founds way to ensure that they are still able to retain a benefit in cases where they have significantly contributed towards the assets or the accumulation of multiple assets.