Historically, spouses were those that had undergone a formal marriage ceremony before a religious or secular authority. We now live in a world where the concept of a "spouse" has broadened to include a more diverse array of relationships, without the requirement of a formal ceremony. Modern legislation has evolved with this changing idea, and many laws in Canada now define the concept of "spouse" to include both those in traditional marriages, and those in "marriage-like relationships".
The legal definition of a "spouse" can vary depending on what the law is for, or more precisely, on what the law needs to define "spouse" for. For example, the Wills, Estates and Succession Act (WESA) is concerned with defining "spouse" to determine who may be entitled to a portion of the estate of a deceased person. The Family Law Act requires a definition of "spouse" to determine if a separated couple is subject to property division, and to calculate spousal support payments. The Income Tax Act needs a definition of "spouse" to determine whether or not tax rules and exemptions apply to a taxpayer. Each of these definitions answers different policy concerns, and these differing contexts often lead to slight but important variations in who will count as a "spouse" under a particular piece of legislation.
The litigation around these different legislative definitions generally arises when it is unclear whether two people are in, or have ended, a "marriage-like relationship", as it is not often contentious whether two people have been formally married or divorced. In many of these legal contexts, courts have applied a set of guiding factors from the leading case of Molodowich v Penttinen, 1980 CanLII 1537 (ONSC) ("Molodowich") to determine whether a specific relationship is sufficiently "marriage-like" to make the participants "spouses". The factors from Molodowich are:
- shelter/cohabitation,
- sexual and personal behavior,
- services,
- social life,
- societal expectations,
- economic support, and
- children.
While these factors are applied in every case where the existence of a marriage-like relationship is at issue, they are often applied with varying weight, on a case-by-case basis. Depending on the context, some are not applied at all.
Below is a table which sets out the legislative definitions for "spouse" in key legislation relating to estates or elder law. For some of them, we have also included cases that have varied the application of the factors from Molodowich.
| Legislation | Who is a spouse? | When does it start? | When does it end? | Application of Molodowich factors |
| Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181. | A person who is married and not living separate and
apart; or a person living with a person in a marriage-like relationship. |
The date of marriage; or the date they began cohabitation in a marriage-like relationship. | Divorce; or on the date of separation if they intend to separate on a permanent basis | |
| Wills, Estates and Succession Act, SBC 2009, c 13. | Persons who are alive immediately before a relevant time (i.e. death of one of the persons) and: who are married; or had lived together in a marriage-like relationship for at least 2 years. Spouses are not considered separated if, within a year of separation, they move back in with each other and intend to reconcile, and continue living together for a total of 90 days. | The date of marriage; or 2 years after the date they began cohabitation in a marriage-like relationship | If a marriage, when an interest in family property arises; and if a marriage-like relationship, when one or both persons terminate the relationship. | In Re Connor, 2017 BCSC 978, the court decided the
deceased and a man who was married to another, who had dated for 24
years though lived in separate domiciles, did not have joint bank
accounts, and undertook separate domestic tasks, were spouses for
the purposes of WESA.
In Robledano v Jacinto, 2018 BCSC 152, the claimant was considered the spouse of her deceased girlfriend despite the fact that the two had only lived together part time. |
| Power of Attorney Act, RSBC 1996, c 370. | A person who is married and not living separate and
apart; or a person living with a person in a marriage-like relationship. |
The date of marriage; or the date they began cohabitation in a marriage-like relationship. | Divorce; or on the date of separation if they intend to stay separate. | |
| Family Law Act, SBC 2011, c 25. | A person who is married; or a person living with another person in a marriage-like relationship continuously for the last 2 years or has a baby with that person. A spouse includes a former spouse. | The date of marriage; or 2 years after the date they began cohabitation in a marriage-like relationship; or the date they began cohabitation in a marriage-like relationship and had a baby (by birth or adoption). | The date of divorce; or if in a marriage-like relationship, the date of separation if they intended to separate on a permanent basis. | In Weber v Leclerc, 2015 BCCA, 492, the court
decided that a couple who kept finances separate and intended to
stay unmarried, but lived together with their kids, were in a
marriage-like relationship.
In Dey v Blackett, 2018 BCSC 244, the court held that couple who had lived together for over 2 years, but who had not sufficiently integrated their finances, were not spouses. |
| Adult Guardianship Act, RSBC 1996, c 6. | a person who is married and not living separate and apart from the other person; or is living with another person in a marriage-like relationship. | The date of marriage and cohabitation; or the date they began living together in a marriage-like relationship. | For both marriage and marriage-like relationships, the date they ceased cohabitation. | |
| Medicare Protection Act. RSBC 1996, c 286. | a person who is married; or who is living with another person in a marriage-like relationship. | The date of marriage; the date they began cohabitation in a marriage-like relationship. | The date of divorce; or the date they terminated the marriage-like relationship. | |
| Cremation, Interment and Funeral Services Act, SBC 2004, c 35. | A person who is married; or has lived with another person in a marriage-like relationship for at least 2 years immediately before the other person's death. | The date of marriage; or 2 years after the date they began cohabitation in a marriage-like relationship. | The date of divorce; | |
| Pension Benefits Standards Act, SBC 2012, c 30. | A person who is married and has not been living separate and apart from the other person for any time longer than 2 years; or has lived with another person in a marriage-like relationship for at least 2 years. | The date of marriage; 2 years after the date of cohabitation in a marriage-like relationship. | The date of divorce; or if married but living separate and apart, 2 years after the date of living separate and apart; or termination of the marriage-like relationship | |
| Land (Spouse Protection) Act, RSBC 1996, c 246. | A person who is married; or has lived with another person in a marriage-like relationship for a continuous period of at least 2 years. | The date of marriage; or 2 years after the date they began cohabitation in a marriage-like relationship. | The date of divorce; the date of termination of the marriage-like relationship. | The Molodowich factors presumably apply to determine the existence of a marriage-like relationship, but the Act does not apply after spouses have separated or resolved the ownership or division of the home under the Family Law Act. |
| Insurance Act, RSBC 2012, c 1. | A person who is married; or is living with another person in a marriage-like relationship. | The date of marriage; or the date they began cohabitation in a marriage-like relationship | The date of divorce; or the date of termination of the marriage-like relationship. | |
| Workers Compensation Act, RSBC 1996, c 492. | A person who is married; or who has lived with another person in a marriage like relationship for at least 2 years or 1 year if the they had a child. | The date of marriage; or 2 years after the date they began cohabitation in a marriage-like relationship or 1 year if they had a child. | The date of divorce; or the date of termination of the marriage-like relationship. | |
| Family Maintenance Enforcement Act, RSBC 1996, c 127. | A person who is married to a debtor; or is living with the debtor in a marriage-like relationship. | The date of marriage; or the date they began cohabitation in a marriage-like relationship. | The date of divorce; or the date of termination of the marriage-like relationship. | |
| Income Tax Act (Canada), RSC 1985, c 1. | Only a person who is married is a spouse, but the same tax rules apply to common-law partners; a person is a common-law partner if (1) they have lived with another person in a marriage-like relationship, and the current relationship has lasted at least 12 continuous months (although breakdowns in the relationship for less than 90 days will not count), (2) they are the parent of the other person's child, or (3) they have custody and control of a wholly dependent child of the other person. | The date of marriage; or 12 months after the date they began cohabitation in a marriage-like relationship; or the date they began living together in a marriage-like relationship and had a child by birth or adoption. | The date of divorce; or if common law, 90 days after the date of separation | |
| Divorce Act (Canada), RSC 1985, c 3. | A person who is married | The date of marriage | The date of divorce | Only married couples can get divorced, so the Act only applies to marriage. The Molodowich factors apply to determine if a couple is in a marriage-like/common-law relationship, so they do not apply to relationships for the purpose of the Divorce Act. |
| Civil Marriage Act, SC 2005, c 33. | A person who is married | The date of marriage | The date of divorce | The Act only applies for the purposes of marriage, so the Molodowich factors do not apply. |
| Pension Benefits Division Act, SC 1992, c 46 | A person who is married; in relation to a member of a pension plan, a person who is party to a void marriage with the member; persons in common-law relationships | The date of marriage; the date of the formation of the common-law relationship | The date of divorce; one year after the date common-law partners having lived separate and apart | None, but note Wittich v. Wittich, 2005 NSSC 265, where the natural parents of a daughter, who were in an affair, were not considered spouses for the purposes of this Act because of the secrecy of their relationship and the fact that the woman's husband at the time was the registered father of the daughter. |
| Family Homes on Reserves and Matrimonial Interests or Rights Act, SC 2013, c 20. | A person who is married (includes persons who have entered a voidable or void marriage in good faith); persons in common-law relationships; subject to First Nations laws | The date of marriage; the date of the formation of the common-law relationship; subject to First Nations laws | The date of divorce; the date of termination of the common-law relationship; subject to First Nations laws |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
