The Alberta Adult Interdependent Relationships Act (AIRA) came into effect in June 2003. It created the legal status of adult interdependent partnerships for persons who live in relationships of interdependence under certain circumstances, whether or not those relationships are conjugal in nature. The purpose of this legislation is to further the development of equality rights in areas of marital status and sexual orientation.
The consequences of having such a status are similar to the legal consequences of marriage under many provincial statutes. For example, the Family Law Act will allow adult interdependent partners to apply for a support order where the relationship has broken down. An adult interdependent partner is now a dependent within the Dependant’s Relief Act, which allows for someone who is not provided for in a will or by the intestacy rules to apply for money or property from the estate of a deceased person.
The AIRA provides for legal recognition of the relationship between two people who are not married. In order for the relationship to be recognized by the law, the relationship must have certain characteristics that are set out in the legislation.
Two people are considered adult interdependent partners if:
- they have made a legal agreement to become adult interdependent partners (which means that the two persons share one another’s lives, are emotionally committed to one another and function as an economic and domestic unit);
- they have lived together for a continuous period of three years or more; or
- if they have lived together for less than three years but are in a relationship of some permanence, and there is a child of the relationship by either birth or adoption.
People who are related to each other by blood or adoption must complete an agreement in order to be treated by the law as adult interdependent partners.
In determining whether or not two persons function as an economic and domestic unit the following relevant factors are taken into account:
- Whether or not the persons have a conjugal (sexual) relationship;
- The degree of exclusivity of the relationship (do they have interdependent relationships with others);
- The conduct and habits of the persons in respect of household activities: this might include matters such as whether they live together, share rooms, share chores, are an economic and domestic unit;
The degree to which they formalize their legal obligations, intentions and responsibilities to one another: this might include matters such as whether they have completed an adult interdependent partner agreement, the degree to which they hold themselves out to others as a couple, or if they have made provision for each other in a will.
Division of Property
Property division can be extremely complicated when a common-law relationship ends. If you and your partner separate, clearly you would own the property that you owned before the relationship and to which your partner made no contribution, but problems could arise with regard to property acquired during the relationship unless very careful records are kept of what each party purchases.
The court is becoming more inclined to find ways to divide property acquired by either party during a common-law relationship in a manner similar to that of a married couple. The law is much less certain here and it is best to avoid the uncertainty of having this issue resolved by the courts, if at all possible.
Exclusive Possession of the Matrimonial Home
Upon marriage breakdown at the court’s discretion under the Matrimonial Property Act, a judge may give one spouse exclusive possession of the couple’s home and household goods (whatever is inside the home). This could be for a certain period of time, e.g., until the children are a certain age, after which time the property would be divided between you and your ex-spouse. The common-law spouse or adult interdependent partner in Alberta does not have the benefit of the Matrimonial Property Act upon the breakdown of the relationship. In order to receive a similar benefit, the common-law spouse or adult interdependent partner who does not hold title to the property might have to establish that she has a contractual interest in the property; for example, that the couple entered into an agreement concerning the ownership in, or division of, property upon the relationship coming to an end.
The common-law spouse or adult interdependent partner may also be able to establish an equitable interest in the property by using a legal doctrine called a constructive trust. Where a couple has lived together in a common-law relationship for a long period of time, each contributing to the relationship (financially or in some other way) and the relationship breaks down, an interest in the property accumulated during the relationship may be awarded to the common-law spouse or adult interdependent partner who does not hold title to the property, if the spouse owning the property would be benefited in a manner considered to be unfair as a result of the other common-law spouse’s work and effort over the years.
A third way that a common-law spouse or adult interdependent partner can demonstrate her property rights is through a legal doctrine called “proprietary estoppel.” For example, if your common-law spouse has told you the house is yours, even though it is not in your name, and has encouraged you to spend your money making repairs to the house, you may have the right to obtain possession of the home. See a lawyer for further advice in this regard.
Common-Law Spouses and Contracts
To protect yourself in a common-law relationship or as an adult interdependent partner, you should consider obtaining a cohabitation agreement which sets out what happens with regard to financial support for the children, custody and access, and property division, should you separate. A cohabitation agreement is usually enforceable under ordinary contract law, and at least provides some evidence of you and your partner’s intentions. You are now able to enter into an adult interdependent relationship agreement with your partner, pursuant to the AIRA. It is a good idea to obtain advice from a lawyer before entering into such an agreement.
In Alberta, the Insurance Act requires that the person for whose benefit a life insurance policy is taken out must have an insurable interest in the life of the insured. The Act now lists spouse and adult interdependent partners (among others) as having an insured interest under the primary person’s life insurance policy. However, as an adult interdependent partner you should ensure that you are specifically named in the insurance policy because if the policy is payable to “wife” then any legal spouse would collect the proceeds.
Common-law relationships may present problems with joint credit arrangements. Treat financial agreements between you and your partner as business agreements. Be particularly cautious about co-signing your partner’s loans, especially for large amounts. You will be responsible for the debts if your partner fails to make the payments, even though the relationship may have ended. Joint credit cards and joint accounts should be cancelled and closed out when the relationship ends.
Common law spouses are eligible to receive a share of their partner’s pension benefit when the relationship ends or their partner dies. Federal laws, governing federal pension plans, recognize a common-law relationship provided you have lived together continuously for one year (see Pension section for more information).
Disputes between the Mother and Father of Children of a Common-Law Relationship
The guardian of a child is the adult who is legally responsible to take care of the child. Usually, the guardian is the parent. Where a mother and father are not married when a child is born, the mother and father of a child are both considered guardians of the child if:
- The mother and father marry each other after the birth of the child.
- The mother and father live together for twelve months in a row and during this time the child is born.
- The mother and father were each other’s common-law or adult interdependent partner at the time of the birth or became each other’s partner after the birth of the child.
Guardians are responsible for making all significant decisions affecting the child and have a right to sufficient time with the child. Guardians have a duty to cooperate with each other in matters that affect the child. If guardians cannot agree, they can apply to Court for a Parenting Order that will spell out how they are to exercise their rights and responsibilities.
As long as there is no Court order to the contrary, parental rights and responsibilities are to be exercised jointly by the mother and father who are both guardians. It is assumed that the two parents will reach an agreement on major decisions affecting their child. Until there is a Parenting Order, neither parent can deny the other parent’s right to see the child. A Parenting Order helps separated parents share their responsibilities and define their parenting plan in the best interests of the child. The child’s own best interests are the primary legal concern in determining how responsibilities and time with the child should be divided.
The biological father of a child must pay child support for his children, regardless of whether he has any rights in connection with the child or if he spends time with the child. If a biological father refuses to pay child support, you can apply to the court for an order declaring paternity and an order for maintenance for the children under the Family Law Act.
The Alberta Maintenance Enforcement Program ensures that individuals meet their obligations to pay child support under the terms of their court orders and certain agreements. Once an order or agreement has been registered with the Program, maintenance payments that the payor would have normally paid directly to the recipient are sent to Alberta Maintenance Enforcement. The Program then forwards the payment to the recipient.
The Child Support Guidelines ensure a base amount for child support depending upon the income of the person who is paying and the number of children involved. On top of the guideline amount, the payor may also have to pay a portion of any special expenses. These could include things like: child care; medical and dental premiums; health related expenses that exceed $100 each year; extraordinary school expenses; post-secondary education; and extra-curricular activities.
Workers’ Compensation Act
This legislation provides for the payment of compensation to the victim of an industrial accident or, in the event of the victim’s death, to her dependents. Coverage is provided for the spouse as well as adult interdependent partner.
Victims of Crime Act
In Alberta, the Victims of Crime Act makes provision for spouses and adult interdependent partners. Under the Act, compensation is available to a victim injured during the commission of a crime or while attempting to prevent the commission of a criminal offence.
Living common law will have an impact on entitlement to certain social welfare payments. If you and your common-law spouse, or adult interdependent partner, are living together in a marriage-like situation, you may be treated as a married couple which may mean that only one partner, usually the man, is entitled to claim benefits, and in the calculation of entitlement, you will be treated as a single household. The reason given for this rule is that it would be unfair to married couples if unmarried couples living together were treated more favourably.
If you and your children (who are the biological children of the deceased) are not provided for adequately in the will of your common-law spouse or adult interdependent partner, you can make a claim for assistance from the estate under the Intestate Succession Act and the Dependent’s Relief Act.
Where an individual dies without a valid will or where their will does not distribute all of their assets, the Intestate Succession Act determines the distribution of the assets of the estate.
If the deceased leaves a spouse or an adult interdependent partner and child, the spouse or adult interdependent partner takes the entire estate. If there is both a spouse and an adult interdependent partner, the individual who was living with the deceased at the date of death receives the estate and the other party receives nothing. If the deceased was survived by children as well as a spouse or an adult interdependent partner, the estate is distributed according to a formula set out in the Act.
The Dependent’s Relief Act allows you to make application for support for yourself and your children.
These acts now apply to same-sex relationships so long as they fall under the definition of an adult interdependent relationship as defined by the Adult Interdependent Relationship Act.
For tax purposes, Revenue Canada treats common-law relationships as though the parties were married.