Kara Sears
Canada's legal system is based on a combination of common law and civil law. The common law is not written down as legislation but evolved into a system of rules based on precedent. Common law prevails everywhere in Canada except in Quebec, which follows civil law. Common-law relationships, where couples live together in a marriage-like relationship without getting formally married, are legally recognized in Canada, but with key differences from a traditional marriage.
| Characteristics | Values |
|---|---|
| Canada's legal system is based on | A combination of common law and civil law |
| Common law is derived from | English and French systems |
| Common law | Is not written down as legislation |
| Common law | Evolved into a system of rules based on precedent |
| Civil law | Refers to the civil code first and then previous decisions |
| Civil law | Includes the Criminal Code, which is used throughout Canada |
| Civil law | Is based on the French Code Napoléon (Napoleonic Code) in Quebec |
| Number of provinces and territories | 10 provinces and 3 territories |
| Common law relationship | Refers to couples living together in a marriage-like relationship without getting formally married |
| Common law relationship recognition | Recognized in government programs like the Canada Pension Plan (CPP) and Old Age Security (OAS) |
| Common law relationship recognition | Recognized for tax purposes by the Canada Revenue Agency (CRA) after 12 continuous months of living together |
| Common law relationship recognition | Varies by province, with different timelines for recognition (ranging from 1 to 3 years) |
| Common law and inheritance | Common law spouses may not have the same inheritance rights as married spouses, and a will is crucial to ensure their protection |
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What You'll Learn
Common-law marriage
Canada's legal system is based on a combination of common law and civil law. Common law is a system of rules based on precedent, which guides judges in making decisions in similar cases. It is not written down as legislation but is flexible and adapts to changing circumstances. Common-law marriage, or living common-law, refers to couples who live together in a marriage-like relationship without getting formally married.
In Canada, common-law relationships are legally recognised in many cases, but with key differences from a traditional marriage. The criteria for a common-law relationship differ based on the province. For federal tax purposes, 'living common-law' refers to couples who have either lived together for 12 continuous months or share a child by birth or adoption. This definition also applies in the context of immigration. However, the definition of common-law in most other contexts is determined by each province. For example, in Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years, or one year if they have a child together. In British Columbia, the threshold is two years, or less if the couple has a child together.
Common-law spouses are generally not treated the same as legally married spouses when it comes to inheritance under succession laws. In most places in Canada, a common-law partner would not have the same inheritance rights as a married spouse. They may have a claim to their partner's estate, but this involves filing a claim, and there is no guarantee it will be approved. It is important for common-law couples to have a will to ensure that their partner is protected in the event of their death.
Government programs like the Canada Pension Plan (CPP) and Old Age Security (OAS) recognise common-law partners for benefit eligibility. However, proof of the relationship may be required with documents such as shared bills, lease agreements, or sworn declarations.
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Common-law in Quebec
Canada's legal system is based on a combination of common law and civil law. Common law is a system of rules based on precedent, which guides judges in making decisions in similar cases. Common law is not written down as legislation but is flexible, allowing judges to announce new legal doctrines or change old ones.
Quebec is the only province in Canada with a civil code, based on the French Code Napoléon (Napoleonic Code). Unlike common-law courts, civil-law courts refer to a civil code and then previous decisions to see if they are consistent.
In Quebec, common-law relationships are when two people make a life together without being married or in a civil union, which is called a "de facto" union. To be considered a common-law couple, it is not necessary to live together, but a couple must live together for at least two years to be considered a de facto couple for tax purposes and at least three years for pension purposes. De facto partners are not considered heirs and do not inherit anything if their partner dies without a will. They do not have the same property rights as married couples, and they do not have the same automatic rights to the family home or any other property acquired during the relationship.
Common-law couples can use contracts to agree on various aspects of their life together, including the division of property, compensatory allowances, and support payments to one of the spouses. They can also take steps in their estate plans to protect each other, such as naming each other in their wills and adding each other as legatees for insurance policies and investment accounts.
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Common-law and inheritance
In Canada, inheritance laws vary across provinces, and the laws regarding common-law and inheritance can be complex. While some provinces include common-law partners in their definition of spouses, others do not, and this distinction has significant implications for inheritance.
In the province of Ontario, the Succession Law Reform Act (SLRA) governs how property is distributed to surviving relatives when someone dies without a will, or intestate. Under the SLRA, married and common-law spouses are treated differently. A legally married spouse has automatic rights to their deceased spouse's property, whereas a common-law spouse does not have automatic inheritance rights. If a common-law spouse dies without a will or does not adequately provide for their common-law spouse in their will, their partner has no automatic right to inheritance or property through an equalization payment.
However, common-law spouses in Ontario can still make claims against the estate based on unjust enrichment. This occurs when one spouse provides services or takes care of the home without compensation from the other spouse, resulting in a valuable gain for the deceased. The court can remedy this through a constructive trust, awarding property equal to the surviving spouse's contribution, or quantum meruit, a monetary award based on the promise of a future award from the deceased spouse.
In British Columbia, a qualifying common-law spouse is entitled to a preferential share of their spouse's estate if they die without a will. To qualify as a common-law spouse, the couple must have lived together in a marriage-like relationship for at least two years immediately preceding the other person's death.
It is important to note that the characterization of a relationship as common-law can be challenging to establish, and courts are often called upon to make these determinations in estate litigation. Seeking legal advice from experienced family lawyers can help individuals protect their interests and understand their rights as common-law partners after the death of their loved one.
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Common-law and tax purposes
Canada's legal system is based on a combination of common law and civil law. Common law, which is derived from English and French systems, is not written down as legislation but evolves from precedents set by judges. Civil law, on the other hand, refers to a system where laws are based on a civil code. Quebec, which follows the French Code Napoléon, is the only province in Canada with a civil code. The rest of Canada, including nine of the provinces and the federal territories, follow the common-law legal tradition.
Now, when it comes to "common-law" in the context of tax purposes, this refers to couples who are considered to be in a common-law relationship and are taxed differently from those who are single. The Canada Revenue Agency (CRA) defines common-law partners as those who have lived together for at least twelve months in a conjugal relationship or those who live with and have a child together.
For tax filing purposes, common-law couples are treated similarly to married couples. Each partner must file their tax return with the CRA, indicating their common-law relationship status and providing their partner's details, including their name, social insurance number, and net income. The CRA uses the combined household income to determine eligibility for government benefits and tax credits. Common-law couples may be eligible for specific tax benefits, credits, and deductions, such as the spousal amount tax credit and spousal RRSP contributions.
It is important to note that, in Canada, individuals must update their marital status with the CRA when it changes, including when they enter into a common-law relationship. This can be done through various methods, such as online or by submitting a form. By understanding the tax implications of their relationship status, common-law couples can ensure they fulfil their tax obligations accurately and avoid potential complications.
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Common-law and the justice system
Canada's legal system is a combination of common law and civil law, with the former prevailing everywhere except Quebec, where civil law predominates. Common law is not written down as legislation but is instead a system of rules based on precedent. This means that judges rely on past decisions to guide them in making rulings on similar cases. Common law is flexible, as judges can announce new legal doctrines or change old ones to adapt to changing circumstances.
Canada's legal system has its foundations in the English common law system, inherited from its colonial past, the French civil law system, inherited from its French colonial past, and Indigenous law systems developed by the various Indigenous Nations. After the Battle of Quebec in 1759, the country fell under English common law, except for Quebec, which retained civil law based on the French Code Napoléon (Napoleonic Code).
Canada's judiciary plays a crucial role in interpreting laws and can strike down Acts of Parliament that violate the constitution. The Supreme Court of Canada is the highest court and final arbiter, with the authority to bind all lower courts in the country with a single ruling. Lower courts must follow the decisions of higher courts, and while decisions made by a province's highest court are considered persuasive, they are not binding on other provinces. When there is little existing Canadian legal authority on an issue, decisions of English and American courts are often utilised, with English Court of Appeal and House of Lords decisions considered persuasive.
Common-law relationships, where couples live together in a marriage-like relationship without formal marriage, are legally recognised in Canada, though they differ from traditional marriages in certain key ways. The criteria for what constitutes a common-law relationship vary by province, generally requiring one to three years of continuous cohabitation or the presence of a child together. Common-law spouses are not always treated the same as legally married spouses, particularly regarding inheritance, and it is important for them to have a will to ensure their partner is protected in the event of their death.
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Frequently asked questions
Common law in Canada refers to a couple who has lived together in a committed, marriage-like relationship for a certain period of time without getting legally married. The length of time varies by province, ranging from one to three years.
In Ontario, a couple is considered to be in a common-law relationship after living together for at least three years, or one year if they have a child together. In British Columbia, the threshold is two years, or less if the couple has a child. In Saskatchewan, the threshold is two years. Quebec refers to common-law relationships as "de facto unions", which are established after two years.
For federal tax purposes, 'living common-law' refers to couples who have lived together for 12 continuous months or share a child. The Canada Revenue Agency (CRA) recognises common-law relationships, and your status must be updated after living together for 12 months.
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