megram - Index

megram - 55GTA - Index

hope of staying in a house not owned
by him or her after the breakdown of
the relationship is to make it part of a
claim for support.This imports the right
to occupy a house as ancillary to receiving
money in the form of monthly support
payments.
Even the right to support is not the
same for an unmarried spouse as it is for
a married spouse.To qualify for support,
an unmarried man and woman must
cohabit continuously for a period of
three years or become the parent of a
child together after a relationship of
some permanence.
Even if a support right is established
by an unmarried spouse, there is
no requirement that the unmarried
spouse who owns the home needs to
have the consent of the other to sell or
mortgage the home in which the parties
reside. A married spouse must consent
in writing to any sale or encumbrance
of the matrimonial home. After the
death of a married spouse, the surviving
non-owner spouse has the right to
remain in the matrimonial home for a
period of six months following the
death. A common-law spouse has no
such right at all and can be removed by
the heirs to the property without
notice.
A married or unmarried spouse can
leave a bequest to the other in a Will,but
caution must be exercised to name the
unmarried spouse to avoid the possibili-
ty of confusion with a previous separated-but-not-yet-divorced
married spouse.
If a married spouse dies without a Will
and leaves a surviving spouse, there is a
legal right to the surviving spouse for a
preferential share of $200,000 from the
deceased spouse’s estate, plus a share of
the remainder with his or her children,
depending on how many children survive.An
unmarried spouse has no rights
on the intestacy of the deceased unmarried
spouse.
Even when there is a Will, a married
spouse has the right to elect to receive
his or her equalization of net family
property in the event that the deceased
married spouse is dissatisfied as to what
his or her married spouse has left. A
common-law spouse has no such right
and is left with a claim for support
against the deceased’s estate based upon
the failure of the deceased to make an
adequate provision for the unmarried
spouse.This can be of very limited benefit
to a surviving common-law spouse
who must compete with other dependents
of the deceased.These dependents
could include their own children or the
children of a prior marriage who were
dependent on the deceased at the time
of death.
Interestingly, the Estates Act allows
anyone with whom the deceased was
living in a conjugal relationship outside
of marriage immediately before death to
apply to become the Estate Trustee without
a Will, even though the surviving
common-law spouse has no entitlement
to the estate assets in the intestacy.
The concept of the common-law
spouse is not completely unknown to
the government. There are some
instances where legislation has been in
place for a number of years, providing a
benefit to surviving common-law spouses.
An example of this is the survivor
benefit under the Public Service
Superannuation Act or under the
Canada Pension Plan Act. In this
instance, a common-law spouse will
qualify as a married spouse after a year
of continuous cohabitation provided the
cohabitation continued to the date of
May 2008 • 34 • Fifty-Five Plus Magazine
death of the plan-holding spouse.
The Income Tax Act treats a common-law
spouse in the same manner as a
married spouse, but a one-year period of
continuous cohabitation still is required
to qualify a common-law spouse for all
deduction purposes. This means as a
common-law spouse you can achieve
the benefits of a tax-free rollover of registered
retirement savings plans (RRSPs)
from your spouse — provided that you
meet the one-year cohabitation requirement.
Seniors who have lost a spouse by
marriage or divorce may choose not to
remarry for a host of valid reasons having
nothing to do with the law.The reasons
for doing so could include pressure
from their children, forfeiture of support
benefits from a former spouse or the
loss of a survivor pension benefit available
to a widow or widower. Seniors
may also have significant assets that they
wish to leave to their own children or to
others, such as charities, without incurring
any legal obligation to a new
spouse, common-law or married. In this
instance, a cohabitation agreement will
help define the legal aspects of the senior
couple’s relationship,freeing them to
enjoy each other’s company without
these concerns interfering with their
happiness. A cohabitation agreement
provides an opportunity to make some
provision for each other,which can override
the wishes of their adult independent
children.
In my experience, older couples
bring to the table the practical experience
of a lifetime and a recognition of
the need to look after each other as well
as their familial luggage. It is important
to understand the pitfalls of remaining
unmarried and how a cohabitation
agreement can bring the peace of mind
to a relationship that even getting married
does not resolve.
John Johnson is a partner with the law
firm of Nelligan O’Brien Payne
(www.nelligan.ca), with offices in
Ottawa, Kingston, Vankleek Hill and
Alexandria.