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LEGAL REPORT/WILLS, TRUSTS & ESTATES Common law couples — Non-married spouses are slowly getting greater access to property and other assets. BY DONALEE MOULTON I n most provinces, if common law couples want the same estate rights as married couples, they had better, as Beyoncé so suc- cinctly belts out, put a ring on it. Those once-entrenched distinctions, however, are slowly being rewritten as governments amend legislation and courts hand down new decisions grant- ing common law couples greater access to property and other assets. "For the most part, common law spouses do not have the same financial or property rights as legally married spouses and, generally, are not considered 'spouses' for the purposes of an intestate divi- sion of an estate," says Tamzin Gillis, an associate with McInnes Cooper in Charlottetown. Indeed, said Geoff Gomery, a lawyer with Nathanson Schachter & Thompson LLP in Vancouver, "one of the features of being married is the presumption of equality. There is no presumption of equality with common law couples. [But] it may come." Lawyers are certainly aware of the shift- ing landscape and its emerging signposts. "I used to say, 'The good news is you're common law. [Your partner] doesn't have a claim against your estate.' The law has changed," notes Karin Schwab, an associ- ate with Fraser Milner Casgrain LLP in Edmonton. One of the most recent cases to have estate lawyers sitting up and reading the fine print is the Supreme Court of Canada's Kerr v. Baranow decision. While the focus is on division of assets after the breakdown of a common law rela- tionship, it has important ramifications for wills and estate law, especially with respect to constructive trusts and unjust enrichment. "The Kerr decision makes it easier to proceed against an estate," says Edward Olkovich, a Toronto law- yer and certified specialist in estates and trusts. "Penny-pinching relatives who inherit the estate often want to fight over who paid for the milk, butter, or soy juice for the past 20 years. Before Kerr, they claimed this was owing to the estate to offset any common law claims. Retroactive accounting attempts are now pushed aside. Because of Kerr, the estate must deal with unjust enrichment claims that raise the bar on the debate." "The court held that the common use of a fee-for-services basis is not the best method and that judges should be more flexible in their approach," notes Erin Lepine, a lawyer with Nelligan O'Brien Payne LLP in Ottawa. "In particular, the court held that we should consider the reality of the circumstances between the parties and treat the claimant as a co- venturer, rather than hired help." Kerr, she adds, addresses the issue of mutual benefit conferral and when it should be taken into consideration in the context of an unjust enrichment claim. "The court held that this is best left to the defence or remedy stage, with the excep- tion that they may be considered at the juristic reason stage of the analysis, but only insofar as they provide proof of the parties' reasonable expectations." The SCC decision has provided a template or roadmap, says Gomery, co- counsel for the appellant Margaret Kerr. "It's really a judgment you can read and you know what you'll have to prove. It's an effective summary." While breaking new ground, the deci- sion was not unanticipated. "The courts are tending more and more to say there is a resulting trust and constructive trust," notes Charles Wagner, the principal of Wagner Sidlofsky LLP in Toronto. "It's an area where things are exploding." For www.CANADIAN Lawyermag.com OCTO BER 2011 49 til death do the y part ANsoN liAw