Saturday, March 1, 2014

Reblog: "The Common Law Relationship Mystery: Are you an Adult Interdependent Partner in a Joint Family Venture and don't even know it" by Erique Dubon-Roberts

Though I do not at this time practice family law, I do assist sensible and cooperative clients who are are either preparing for marriage or entry into an adult interdependent partnership or leaving one.  That is I assist client with prenuptial and nuptial agreements, matrimonial property agreements, adult interdependent partnership agreements and separation agreements.  I hope to at some point bring into Bridgeland Law a lawyer who practices in the area of matrimonial law.

In the winter issue of "Law Matters" published by the Canadian Bar Association, Enrique Dubon-Roberts has written an excellent summary of the law related to common law partnerships and adult interdependent partnerships.  It is repeated below in its entirety:

The Common Law Relationship Mystery: Are you an AIP in a JFV and don’t even know it? by Enrique Dubon-Roberts

As a family law lawyer, I often find that couples, especially young ones, often ask: “as we considered common-law, 
yet?” This question is often followed by an awkward silence. The silence is due to the current state of the law in Alberta 
for unmarried couples, and because I know how difficult it is to give a simple answer to this question. Statistics 
Canada’s 2011 Census, as summarized in its Portrait of Families and Living Arrangements in Canada, showed that 
common-law couples have increased by 13.9% since 2006, making common-law couple families account for 16.7% of census families. Therefore, I smile, and try to answer the questions; what follows is a shorter version of my basic overview of a very complex area of law. 

The rights of unmarried partners in Alberta can be better explained by dividing them in two categories: (1) the rights conferred on unmarried couples by legislation; and (2) the property rights that may arise due to the parties’ contributions to the relationship.

Firstly, in Alberta, Section 3 of the Adult Interdependent Relationship Act, SA 2002, c. A-4.5 defines an Adult Interdependent Partner (“AIP”) as a person who (a) has lived with another person in a relationship of interdependence (i) for a period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption. The act outlines the indicia of an AIP relationship and it allows AIPs to enter into an agreement to be AIPs. Once this definition is met, unmarried partners may access rights and remedies under Part 3 of the Family Law Act, SA 2003, c. F-4.5, and Part 3 of the Wills and Successions Act SA 2010M c. W-12.2. Part 3 of the Family Law Act mostly deals with child support and AIP Support Rights. The Family Law Act outlines the factors that a court is to consider if/when an AIP makes a partner support application. The Wills and Successions Act deals with 
the distribution of intestate estates and gives an AIP, whose 
partner has passed away without a will, the potential ability 
to inherit from the deceased partner’s estate. By no means 
are any of these rights guaranteed, but the potential claim is 
only available to those who meet the definition of an AIP. The Income Tax Act and pension legislation also prescribe further rights and obligations to unmarried partners. 

There are no statutory property rights for unmarried couples 
(married couples enjoy a presumption of equal division of 
matrimonial property). The property rights and obligations 
of unmarried couples are dictated by the same rules that apply to other non-romantic relationships where unjust enrichment claims arise, as our Supreme Court outlines in its Kerr v. Baranow, 2011 SCC 10, decision. In short, when (1) one party receives a benefit/enrichment, (2) while the second party suffers a corresponding deprivation, and (3) there is no juristic reason for the same, the second party may have claim against the first. 

Once the case for an unjust enrichment has been met, our 
Supreme Court in Kerr gave our courts a bit of flexibility in 
relation to the remedies available to unmarried partners by 
introducing the idea of a Joint Family Venture (“JFV”). The 
direction from the SCC is that we are to consider the unmarried partners’: (1) mutual effort, (2) economic integration, (3) actual intent, and (4) priority of the family in establishing the existence of a JFV. The Supreme Court supplied us with some details of what evidence is needed to decide if a JFV exists by exploring the habits, behaviours and arrangements between unmarried partners.

At this point, I usually stop and check to see if anyone is still 
listening, and I am often met with blank stares. I then assure 
my audience, who usually had no idea that moving in together could give rise to all these issues, that family law lawyers are eagerly reading up on reported decisions interpreting Kerr, in order to get a better grasp on this very difficult area of law.