When am I considered to be in a “common law” marriage in Nova Scotia?

In Nova Scotia, the definition of “common law marriage” is different depending on why the designation is needed and what piece of legislation it falls under. Unfortunately, ‘spouse’ is not defined the same under all the laws of Nova Scotia or Canada.

Each piece of legislation defines a legal spouse differently

For example, for income tax purposes, the CRA defines a common law partners (who then qualify for the same benefits as a legally married spouse) as any couple who are not legally married, but have been living together for at least 12 months, or are living together and have a child together.

Meanwhile, for the purposes of the Parenting and Support Act (Nova Scotia’s laws about parenting time, child support and spousal support), “spouse” includes people who are not legally married, but have been living together for at least two years, or have been living together and have a child together.

Canada Pension Plan and private pension plans have different requirements as well, which should be looked into on a case-by-case basis.

Nova Scotia’s estate laws (Intestate Succession Act, Wills Act, Probate Act) do not define the term ‘spouse’, however the Nova Scotia Supreme Court determined in Jackson Estate v. Young, 2020 NSSC 5 that ‘spouse’ in these laws does NOT include a common law partner.

By Default, Common law partners are not equal to legally married spouses

The default is that if you are not legally married, you are not a ‘spouse’ - no matter how long you’ve been together or how integrated your lives are. Therefore, it’s critically important that you understand the definition of ‘spouse’ under the piece of legislation that applies to your circumstance if you, as a ‘common law partner’ hope to claim the benefits or entitlements of a legal spouse.

Registered Domestic Partnership provides you with ‘spouse’ status under the laws of Nova Scotia

In Nova Scotia, you can register a domestic partnership with the government if you don’t want to get legally married, but wish to be considered a ‘spouse’ under ALL of the laws of Nova Scotia. Registering a domestic partnership entitles you to all of the benefits of legal marriage, including the division of assets and debts. You can only have one domestic partner at a time, and you cannot register a domestic partnership if you are still legally married to another person.

By: Anastacia DesLauriers – Lawyer

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