Ontario Common-Law Spouses – Beware of Legal Changes

Recent court decisions have made it clear that certain claims against estates are restricted to two-year limitation periods. This means that you may only have two years from the date of a person’s death to raise legal claims. If legal claims are filed late, they can be dismissed by courts. You would lose your rights. This change particularly affects common-law spouses who may have been omitted or denied support from their partner’s estate.

Caution – this two-year limitation period does not override existing time limits or restrictions in current statutes. For example, Ontario legislation gives married spouses six months to start court applications and file elections after a married spouse dies. This happens if married spouses intend to make claims that exceed what is in a will or what they would receive on intestacy.

In Ontario, common-law spouses have no automatic rights to inherit any portion of the partner’s estate. They must be included in any will or designated as beneficiaries of assets (such as pensions, life insurance or registered investments). If these designations or provisions in a will are inadequate, legal proceedings may need to be commenced claiming unjust enrichment, constructive trust or a joint family venture (these are some equitable remedies).

There were many Ontario court decisions that differed on whether claims for equitable remedies could be made up to 10 years after a person’s death or only within two years. Ontario’s Court of Appeal, in a recent series of decisions, has limited claims against estates to two years following any person’s death.

The Ontario Court of Appeal was mindful that estates need to be efficiently administered so that beneficiaries do not suffer indefinite delay and injustice from legal proceedings. If court cases are commenced 10 years following a relative’s death, how can any estate be distributed and closed?

The reality is that the legal system cannot cope with all these claims, even those that can arise after two years. Ontario may need to make legislative changes so that common-law spouses will not have to commence legal proceedings against a partner’s estate.

If you are a common law partner and your partner has died, check with your lawyer. Make sure you file your claim for equitable remedies in time. If you may benefit from a second opinion, let me help you today. Set up an initial meeting to discuss your options.

As a Certified Specialist, estate law is all I do.