When Are Common-Law Couples Considered Separated?

Relationships can vary widely; some couples may choose not to get married despite being in a marriage-like relationship. This decision is based on personal preference, but the legislation and the courts still recognize that certain rights can arise from a long-term relationship, even if the parties are not married. This is because the parties may have become dependent on each other, so it may be unfair for one party to keep all of the property in their name. Therefore, there are laws surrounding how common-law couples are defined. For common-law relationships, it may also be unclear when the parties separated. This can be a significant issue as the separation date determines rights after separation, such as the valuation date of property or whether a claim is past its limitation date. 

In this post, we will discuss common-law relationships in Alberta. We will also discuss when the parties are considered to be separated. This will highly depend on the facts of the case, but this post will provide some general principles to provide insights into common-law couples. This post will assist parties to a common-law relationship in understanding their rights upon separation. We will examine the case Maggs v. Huggins, 2023 ABKB 383, in which the court found that the separation date was later than when one of the parties physically moved out of their home. 

Common-Law Relationships in Alberta 

In Alberta, common-law relationships are called adult interdependent relationships and are governed by the Adult Interdependent Relationships Act. 

An adult interdependent partner has lived with another person in a relationship of independence for at least three years, or there is some permanence associated with the relationship, such as having a child together by either birth or adoption. Parties can also be considered adult interdependent partners to each other if they have agreed in section 7 of the Adult Interdependent Relationships Act. Often, this will include parties who function as an economic and domestic unit. It is also possible that there is an adult interdependent relationship, even if it is not romantic or sexual, as long as it satisfies the criteria under legislation and case law. 

In the context of a common-law relationship, a relationship of interdependence does not exist between two parties if one provides domestic support or personal care for a fee or some other benefit. Also, a relationship of interdependence is not valid if one party provides domestic support or personal care on behalf of another person or organization, including the government.

Certain relationships will not be considered adult interdependent relationships. For instance, minors or those lacking mental capacity may not be able to enter into an adult interdependent relationship. Also, parties already married or entered into an Adult Interdependent Partnership agreement with another person will not be in an adult interdependent relationship with an additional party. The parties must also cohabitate with each other or at least have a plan to cohabitate in the future if that is not currently a feasible option. Parties are also not considered to be in an adult interdependent relationship that is entered into under duress or fraud. 

What is considered a separation for common-law couples?

Even if the parties are physically separated, this does not necessarily mean that there has been a legal separation. For common-law relationships, in particular, parties are considered separated when they no longer cohabitate. However, cohabitation is not quite the same as physically living together, so a physical separation does not necessarily mean there is a legal separation. Separation occurs in a common-law relationship when either party considers it the end of the relationship based on their conduct, demonstrated convincingly. The party’s conduct must also be of a settled mind, meaning that they did not later act as if the relationship continued. 

Why is it important to determine the separation date?

Before the change from the Matrimonial Property Act to the Family Law Act, common-law couples could not claim any property rights under the family law regime. Instead, they could make civil claims to the property, such as for unjust enrichment, to compensate them for their contributions to the property. It is important to note that common-law couples who separated before January 1, 2020, may still be subject to the previous family law regime and need to make their claim based on unjust enrichment. 

Any claims of unjust enrichment arise upon separation, so common-law couples need to determine their separation date. Also, with unjust enrichment claims, there are limitation periods affected by the separation date. This was an issue in the Maggs case, which is discussed below. 

Court finds parties not separated despite one partner moving out 

In the Maggs case, the parties were not married but were in a relationship for 16 years. They lived together and had children together. The father claimed the parties separated in October 2016 when he moved out of their family home. The mother claimed that the parties did not separate until October 2018, after she declared that the relationship was over, after being concerned that the father was engaging with HIV-positive companions. The separation date was relevant, as it would determine whether or not the limitation period had run out for the mother’s unjust enrichment claim. 

The court looked to the specific facts to determine when the parties separated. The court found that the separation date was not October 2016, as the father described. He had not demonstrated that his mind was settled on ending the relationship even after moving out of the home. The court found that the common-law relationship continued in 2017 and 2018, as there were photographs of the parties hosting and socializing together. Also, the father continued to spend one of four nights with the mother in their family home, which showed that his mind was not settled on ending the relationship. 

In addition, the father did not tell the mother that their relationship was over. This was in contrast to the mother’s actions, as she declared in October 2018 that the relationship was over due to the father’s association with HIV-positive individuals. She also removed the ring he gave her from her finger. Therefore, the separation date was considered October 2018, as it would give the mother reasonable grounds to believe that the relationship was permanently over, as she had acted on the termination herself. 

The court concluded that the mother’s unjust enrichment claim fell within the limitation period, and she was entitled to proceed.

Mincher Koeman Family Lawyers in Calgary Can Assist with Adult Interdependent Relationship Claims

There is no one-size-fits-all approach to the various forms of relationships that exist. Even if the parties are not formally married, legal consequences may arise, including claims for partner support or property claims. Given that these findings depend on the case’s unique circumstances, you should contact one of our family law lawyers at Mincher Koeman, who are experienced in assisting parties with issues involving adult interdependent relationships. Our Calgary family law lawyers are dedicated to finding your best resolution.

To book a consultation, please contact us online or by phone at 403-910-3000.