Gavin Howe
Canada's legal system is founded on a combination of common law and civil law. Common law is not written down as legislation but evolves as a system of rules based on precedent. Common law prevails in Canada except in Quebec, where civil law predominates. Nine of the provinces, excluding Quebec, and the federal territories, follow the common-law legal tradition.
| Characteristics | Values |
|---|---|
| Number of common law states | 9 provinces and 3 federal territories, excluding Quebec |
| Common law definition | Law that is not written down as legislation, but evolves from precedent |
| Common law recognition | Canada recognizes common law relationships, but they are treated differently to marriages in terms of inheritance |
| Common law inheritance | Common law partners may need to file a claim to receive inheritance, and it is at the judge's discretion |
| Common law in Quebec | Common law is referred to as a de facto union, and partners are not entitled to inheritance |
| Common law and federal tax purposes | 'Living common-law' refers to couples cohabiting for 12 months or sharing a child |
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What You'll Learn
Common law in Canada excludes Quebec
The legal system of Canada is pluralist, with foundations in the English common law system, the French civil law system, and Indigenous law systems. Common law prevails across Canada, except in Quebec, where civil law predominates. Nine of the provinces, excluding Quebec, and the federal territories, adhere to the common law legal tradition.
In Quebec, common law relationships are referred to as de facto unions. To be recognised as a de facto couple for tax purposes, a couple must live together for at least two years. This is also the case in other provinces, such as British Columbia. However, in Quebec, a common law spouse is not entitled to anything in the event of their partner's death without a will. This is in contrast to other provinces, where common-law partners may have inheritance rights.
The distinction between civil law and common law in Canada is not based on the division of powers set out in the Constitution Act, 1867. Instead, legislation enacted by the provincial legislature in matters of public law should be interpreted following the common law tradition. Conversely, legislation enacted by the federal Parliament in matters of private law is to be interpreted following the civil law tradition and in harmony with the Civil Code of Quebec. Quebec law can be divided into two spheres: private law and public law. Private law deals with relations between individuals, while public law governs the rules of the Quebec government.
Quebec constitutional law, which governs the rules of the Quebec government, the Parliament of Quebec, and Quebec's courts, is largely governed by the Constitution of Canada and various acts of the Parliament of Quebec. Quebec administrative law governs relations between individuals and the Quebec public administration. While Quebec has some jurisdiction over criminal law, it is limited as the Parliament of Canada is responsible for criminal law.
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Common law in Canada is inherited from British common law
Canada's legal system is pluralist, with foundations in the English common law system, French civil law, and Indigenous law. Common law in Canada is inherited from British common law, specifically from its period as a colony of the British Empire.
After the Battle of Quebec in 1759, Canada fell under English common law, except for Quebec, which follows civil law. The common law is not written down as legislation but evolves into a system of rules based on precedent. This is a rule that guides judges in making decisions in similar cases. For instance, in matters of public law, such as the Code of Penal Procedure, common law tradition is followed. Common law is flexible and adapts to changing circumstances as judges can announce new legal doctrines or modify existing ones.
Canada's federal structure adds complexity to its legal system. It has a federal parliament in Ottawa that makes laws for the entire country, and each of the ten provinces and three territories has a legislature that deals with local laws. Common law prevails everywhere except in Quebec, where civil law predominates. Nine of the provinces and the federal territories follow the common law legal tradition.
In matters of criminal law, which is solely a federal responsibility, common law and civil law intersect. While criminal law is uniform throughout Canada, it is based on common law traditions, with the Criminal Code serving as the primary reference. However, Quebec has a hybrid legal system, with private law following the civil law tradition and public law adopting the common law tradition.
The distinction between civil and common law is not based on the division of powers outlined in the Constitution Act of 1867. This act affirmed governance based on parliamentary precedent and divided powers between the federal and provincial governments. While the Statute of Westminster of 1931 granted full autonomy, the Constitution Act of 1982 severed all legislative ties to Britain.
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Common law in Canada is flexible and adapts to changing circumstances
Canada recognizes common-law relationships in certain situations, and the definition of common law varies depending on the context. For federal tax purposes, 'living common-law' means couples have either lived together for 12 continuous months or share a child. However, the federal government's recognition of common-law relationships also applies to immigration and pensions.
The definition of common law also differs across Canada's provinces and territories, which have varying criteria for recognizing common-law relationships. For example, in Quebec, a couple is considered common law for tax purposes after living together for at least two years. In most other provinces, common-law relationships are recognized after 1 to 3 years of continuous cohabitation or if the couple has a child together.
The flexibility of common law in Canada is further demonstrated in the recognition of multiple residences for married spouses and the broad evaluation of living arrangements. Courts have ruled that there cannot be a "mechanical bright line test" around the concept of "moving in," as it would not add precision to the legal concept of living together. Instead, the determination of common-law status considers the unique circumstances of each case.
Canada's common law adapts to changing circumstances, as seen in the recognition of common-law relationships and the flexibility in defining "living together." The legal rights and responsibilities of common-law couples may differ from those of married couples, particularly in areas such as inheritance, spousal support, and property division. However, common-law relationships in Canada are becoming more prevalent, with nearly 25% of couples in such relationships in 2022, the highest percentage in the G7.
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Common law in Canada does not recognise common-law marriage
Canada's legal system is pluralistic, with foundations in the English common law system, the French civil law system, and Indigenous law systems. Common law prevails across Canada, except in Quebec, where civil law is predominant. While common-law relationships are recognised in Canada, common-law marriage, where a couple is considered legally married based on cohabitation and intention, is not recognised.
In Canada, common law generally refers to a conjugal relationship between two individuals who are not legally married but live together. The recognition of common-law relationships and the rights and responsibilities associated with them vary across different provinces and legal contexts. For example, in matters of taxation, immigration, and estate planning, the definition of common law may differ.
While some provinces may grant common-law couples similar rights and responsibilities as legally married spouses, they are not considered legally married. They may be legally defined as "unmarried spouses" and treated similarly to married couples for specific purposes, such as taxes and financial claims. However, it is important to note that common-law spouses may not have the same inheritance rights as legally married spouses, especially in the absence of a will.
The criteria for a common-law relationship also vary by province. Most provinces recognise common-law relationships after one to three years of continuous cohabitation or if the couple has a child together. For example, in British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years or if they have a child and have lived together for less than two years. In contrast, Quebec recognises common-law relationships, referred to as de facto unions, for tax purposes after two years of continuous cohabitation.
In summary, while Canada recognises common-law relationships and grants certain rights and responsibilities to common-law couples, it does not recognise common-law marriage as a means for a couple to be legally considered married without a formal ceremony. The specific rights and recognition of common-law relationships vary across different provinces and legal contexts in Canada.
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Common law in Canada treats legally-married couples differently
Canada's legal system is pluralist, with foundations in English common law, French civil law, and Indigenous law systems. Common law prevails across Canada, except in Quebec, where civil law is predominant. While Canada does not recognise common-law marriage, it does recognise informal cohabitation relationships, which create certain legal rights and obligations.
In most parts of Canada, common law spouses are not treated the same as legally married spouses when it comes to intestate succession. Outside of British Columbia, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners do not have the same inheritance rights as married spouses. In these cases, common-law partners may need to file a claim to the estate, which may or may not be approved, depending on the specific circumstances and the judge's discretion.
In Quebec, a common-law spouse is never entitled to anything in the event of their partner's death. Similarly, in Ontario, property acquired during a common-law relationship is typically owned by the individual who holds the legal title. However, remedies are available at common law for cohabiting spouses, such as a constructive trust resulting from unjust enrichment, which allows a non-titled cohabiting spouse to gain a right to property.
The definition of common-law status varies across Canada's provinces and legal contexts. Most provinces recognise common-law relationships after one to three years of continuous cohabitation or if the couple has a child together. For federal tax purposes, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child. This definition also applies in the context of immigration.
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Frequently asked questions
There are nine common law states in Canada: British Columbia, Alberta, Manitoba, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and Ontario. Quebec is the only province with a civil code.
Common law in Canada typically refers to a person living with someone they are not legally married to but are in a conjugal relationship with. Common-law relationships are recognised in certain situations and for specific purposes, such as taxes, immigration, and estate planning. The definition of common law varies depending on the context and each province.
Common law in Canada is based on precedent, where judges refer to past decisions to guide them in making rulings on similar cases. It is flexible and can adapt to changing circumstances as judges can announce new legal doctrines or modify existing ones.
