CANADA Trends and Developments Contributed by: Ian Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
Can common - law spouses be excluded from dependant ’ s support ? Since 2020, several courts have held that depend - ant’s support legislation the does not permit common- law spouses to seek dependant’s support from the estates of their deceased partners is unconstitutional. The Nova Scotia Supreme Court considered this issue in LeBlanc v Cushing Estate , 2020 NSSC 162, after being asked to evaluate the constitutionality of the Testators’ Family Maintenance Act, RSNS 1989, c 465, which only permits married spouses and com - mon-law spouses who have registered their relation - ship to seek dependant’s support. While the court held that excluding unregistered common-law cou - ples from the definition of “dependant” was discrimi - natory and thereby infringed the Canadian Charter of Rights and Freedoms, this limitation was ultimately saved because it could be justified. The court found that the registration requirement minimally impaired equality rights and that any detriment to these rights was outweighed by a number of benefits, including certainty in estate administration and planning, and limiting interference with testamentary autonomy. More recently, the Newfoundland and Labrador Supreme Court affirmed in McCarron v Bartlett , 2025 NLSC 73 that legislation denying common-law spous - es standing to seek dependant’s support violated the Charter and could not be justified. This issue was resolved legislatively in 2025 by amending Newfound - land and Labrador’s Family Relief Act, RSNL 1990, c F-3 to recognise a deceased person’s cohabitating partner as a dependant. The court also held in McCa- rron that common-law spouses whose partners died before the legislative amendments took effect could seek relief as though the amendments were in force at the time of death. The criteria for being recognised as a common - law spouse The question of who qualifies as a common-law spouse frequently arises in dependant’s support liti - gation. While statutory definitions vary across Can - ada, to be recognised as a common-law spouse in most jurisdictions, the applicant must have cohab - ited with the deceased in a conjugal relationship for a prescribed period immediately before death. The
The Evolving Recognition of Non-Traditional Families in Canadian Succession Planning In Canada, testamentary freedom is a foundational principle of succession law: individuals are generally free to determine how their property will be distrib - uted on death. However, testamentary freedom is not absolute. For their wishes to be respected, the tes - tator must also make adequate provision for family members and dependants; otherwise, the deceased’s estate may be ordered to provide support or, in British Columbia, the deceased’s will may be varied. Historically, dependant’s support obligations have reflected the traditional nuclear family, requiring tes - tators to provide for their married spouses and bio - logical or adopted children. Over time, however, the law has evolved to recognise a broader range of fam - ily relationships. For example, common-law spouses are now widely recognised, meaning it is no longer necessary to be married to establish entitlement to support from a deceased partner’s estate. In some Canadian jurisdictions, courts have even recognised that a deceased’s estate may be required to bene - fit multiple spouses. Depending on the jurisdiction, dependant’s support obligations may also extend to children with whom the deceased had no biological or adoptive connection, and in some jurisdictions they may even extend to children conceived and born fol - lowing a parent’s death using assisted reproductive technology. In light of the increasingly broad support obligations that may be imposed on estates, it is now clear that modern succession planning must account for family relationships that fall outside of traditional legal cat - egories. Common-law spouses Common-law relationships have become an increas - ingly important consideration in Canadian succession planning. In several provinces and territories, surviv - ing common-law spouses are now entitled to share in their deceased spouse’s estate on intestacy, and in all provinces and territories but Quebec, common- law spouses may seek dependant’s support from the estate of their deceased partners.
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