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 People.com 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.