Are You an Ontario Surviving Common Law Spouse Who Needs Support?

You may need some good news if you have recently lost your common law spouse in Ontario. If you qualify and need support, laws allow you to apply for dependant’s relief. The hard part is that, like many of my clients, you need to start a legal proceeding.

Dependant’s relief is separate from any tax, CPP, insurance, or employment benefits you may receive.

For unmarried spouses, Ontario is not like other Canadian provinces. You do not automatically share in your common law partner’s estate. If you are a common law partner, you need to ensure you are protected by your partner’s estate plan.

Estate Planning Fails Most Ontario Common Law Couples

Most people fail to make an estate plan. The often tragic consequences are most severe for Ontario’s common law spouses.

A bad estate plan can also cause problems. It can create expensive mistakes. This leaves your family and executor to sort things out later in court.

A misconception is that you don’t have to provide for your common law spouse in your will. Some people believe only married spouses have rights.

This is wrong.

A recent court decision deals with Ontario’s statutory protections for common law partners. The court analyzes if a partner met legal and moral obligations to make adequate provision for their surviving spouse.

I can tell you stories from experience. When a common law spouse fails to provide for their partner’s support, lawsuits can be painful and drag on for 3-5 years.

Ontario Married Spouses Have Statutory Property Rights

If you are married in Ontario, your estate plan must consider your spouse’s property rights. Married partners can also file a Family Law Act Election.

Only married spouses can make this Ontario election. They can accept what a will gives them, or sue for their legal share of an estate. The share might be the value of family property that they would have received in a divorce.

But there is a kicker. Married spouses also can make a claim for support as a dependant. The right to make an election does not cancel their right to claim support.

What Happens If There Is A Claim for Dependant’s Relief Made against An Estate?

Everyone gets to bring a lawyer to the party. Bills add up fast. In a recent reported case, one side’s legal bill was over $99,000 before the case finished.

You do not have to be rich to have a fight over your estate. In one case, the fight began over a life insurance policy. The amount of the group insurance benefit was $84,000.

New Ontario court decisions reinforce the need for proper estate planning for common law partners. Ontarians can hope for a legislative solution similar to British Columbia. The latter province gives domestic non-married partners a share of the estate.

The Ontario relief legislation is contained in Part V of the Succession Law Reform Act. It is entitled Support of Dependants.

Dependants include a common law spouse who is:

a) Married to another person, or if not married, has

b) Cohabited continuously for not less than 3 years

What if you had children with your common law spouse but were not married? There is one exception that covers you. The definition of spouse includes you if you gave birth to or adopted a child.

You also need to show you were a dependant to qualify for the relief. I’ll return to this in a future post called, Do You Need Ontario Dependant’s Relief?

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Edward Olkovich (BA, LLB, TEP, and C.S.) has successfully resolved many estate disputes for spouses. These have included elections under the Family Law Act and dependant’s relief under the Succession Law Reform Act.

Ed is an Ontario lawyer, nationally recognized author and estate expert. He is a Toronto based Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven estate books. See more at his related sites EstateTherapy and ExecutorSchool.
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