- (This article is written for a Chinese language newspaper. The information contained here is general information, particularly for Chinese people living in Ontario. If you have a particular problem respecting an Ontario Cohabiting Conjugal Relationship, please consult a lawyer.)
- Fifty years ago, a Chinese person would not think of living with a member of the opposite sex in a conjugal relationship without marrying that person. But, things have changed. Now, even Chinese people sometimes cohabit together in a conjugal relationship without the benefits of marriage.
- Ontario’s Calculating single Chinese persons know more about the Ontario’s financial provisions for cohabiting conjugal couples and the Ontario property equalization rules for separation and divorce, and the probate of Wills for married couples, than I do. So, why am I writing this article?
- COMMON LAW RELATIONSHIPS
- Suppose a Chinese person contemplates cohabiting with a person of the opposite sex in a conjugal relationship without the benefit of marriage. Apart from physical attraction, what are the financial considerations for that Chinese person to enter into this cohabiting conjugal relationship?
- Part III of Ontario’s Family Law Act sets out Support Obligations:
(a) Section 30 of the Ontario’s Family Law Act states the following:
“30. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.”
(b) Section 29 of the Ontario Family Law Act defines the term “Spouse” for Part III of Ontario’s Family Law Act. (Please note that the word “Spouse” is defined differently in Part III of Ontario’s Family Law Act from the definition of that word in other Parts of Ontario’s Family Law Act.):
“29. In this part,
“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or
(b) in a relationship or some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. (“conjoint”)”
- Apart from conceiving and giving birth to a child, the Chinese person has to cohabit with his/her live-in conjugal partner for 3 years to obtain the financial support from his/her live-in conjugal partner (for the rest of his/her life?).
- In Ontario’s Family Law Act, the “Matrimonial Home” provision only applies to married couples. The “Matrimonial Home” provision does not apply to common law couples.
- In Ontario’s Family Law Act, the “equalization of net family property” (a division of assets) provision only applies to Married couples. This provision does not apply to common law couples.
- Please note that in Ontario, a cohabiting conjugal couple can develop a common law relationship, even if one or both of them are still legally married to other people.
- In Canada, Marriage is governed by the federal government under the Canadian constitution; but that same constitution gives the provinces the authority to govern the “solemnization” of marriages. The majority of Canadian marriages are solemnized by religious clergies, the rest are solemnized by non-clergies.
- After the couple has been married, the federal government has completed its responsibility, and the Ontario government takes over under Canada’s Constitution Act Section 92(13) – civil and property rights. Under Constitutional Act Section 92(13), Ontario has enacted the Family Law Act, which sets out the rights and privileges of this married couple during their marriage. Section 5 of the Ontario Family Law Act sets out the “Equalization of net family properties”. This “Equalization of net family properties” is triggered by Divorce, Annulment of marriage, permanent separation, improvidently depletion of net family property, and death of one of the married spouses.
- Section 1(1) of the Ontario Family Law Act sets out the definition of the term “Spouse” for this Act (except for Part III (Support Obligation) of this Act, which has a different definition for the term “Spouse”). Section 1(1) of the Ontario Family Law Act defines the term “spouse” as follows:
“1(1) In this Act,
“Spouse” means either of the two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)”
- In addition to the Ontario Family Law Act, Canada’s federal government has enact the Divorce Act. In addition to the Divorce order itself, the Canadian Divorce Act sets out corollary Reliefs including:
Child Support Orders, Spousal Support Orders, and Custody Orders.
The Canadian Divorce Act orders are in addition to the Ontario Family Law Act orders. However, if a married spouse has already obtained a Spousal Support Order under Ontario’s Family Law Act, he/she is not required to again ask for a Spousal Support Order in her Divorce Petition, but merely ask the Ontario Superior Court/Unified Family Court’s Divorce Justice to incorporate the Spousal Support Provisions in the already issued Ontario Family Law Act order in the Divorce Judgment.
- COHABITING CONJUGAL RELATIONSHIPS WITHOUT MARRIAGE:
- From reading the above 3 parts, we have learned the following:
(a) Married spouses are financially well protected,
(b) Common law spouses are financially protected for support only, and
(c) Cohabiting Conjugal partners who are neither married spouses nor common law spouses, apart from claims of Unjust Enrichment or Constructive Trust, are not financially protected at all.
- A Chinese person in a cohabiting conjugal relationship, who is neither a married spouse nor a common law spouse, wishes to gain financial protection in his/her cohabiting conjugal relationship. What to do?
- Either win the lottery or execute an Ontario Cohabitation Agreement with his/her cohabiting conjugal partner.
- Section 1(1) of the Ontario Family Law Act defines “cohabit” as following:
“1(1) In this Act,
“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; (cohabiter”)
- Section 53 of the Ontario Family Law Act sets out the “Cohabitation Agreement”. The only requirements for two people to enter into a Cohabitation Agreement is that these two persons are the following:
(a) These two person are cohabiting or intend to cohabit, and
(b) These two persons are not married to each other.
- Section 53(1) of the Ontario Family Law Act sets out the following:
“53.(1) Two person who are cohabiting or intend to cohabit who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing cohabit or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
(d) any other matter in the settlement of their affairs.”
7. I hear footsteps outside my office: Cohabiting conjugal Chinese people are rushing to my office to draft and sign Cohabitation Agreements with their cohabiting conjugal partners.