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and common law couples who have cohabited for not less than two years the same," says Maria Markatos, Crown counsel with the Ministry of Justice's Public Law Division in Regina. The thinking has changed since 2002 when the Supreme Court of Canada released its decision in Nova Scotia (Attorney General) v. Walsh. "In an 8-1 decision, the court upheld the constitu- tionality of the exclusion of unmarried opposite-sex spouses from provincial matrimonial property laws. It found that such exclusions were not discriminatory within the meaning of section 15(1) of the Charter of Rights and Freedoms," notes Gillis. "Walsh . . . made the point that being married is different than being in a common law relationship," says Gomery. Since then, he notes, "the courts have been struggling with the need to do justice in the case of common law couples without rendering uncertain some very key property law tenets." The courts and legislators have also recognized that public opinion is not aligned with legal reality. "There is a per- ception among the general public that common law spouses have the same rights as legally married spouses. This is simply not the case," says Gillis. "I find many people, mostly women, are surprised and shocked that . . . their legal standing is not protected automatically," says Olkovich. The assumption of equality may well be reflected in the increasing number of common law couples in Canada. "According to Statistics Canada, the number of common law couples in Canada has more than doubled in the past two decades. With this option to marriage gaining in popularity and pub- lic acceptance, it is easy to see why people assume common law couples are Read and at at afforded the same rights," says Gillis. There are also political factors at play, says Schwab, noting that governments may well question why they should have to assume responsibility for common law spouses in the wake of the deaths of their partners. "This is relatively new. It's under the guise of protection." As Canadian courts and lawmakers begin a new relationship with com- mon law couples, lawyers will have to be more vigilant. "Lawyers doing estate planning will need to consider amend- ing their estate planning intake forms to consider common law obligations. Cohabitation agreements may need to be drafted to protect their clients' estate- planning objectives," says Olkovich. "These agreements, called domestic contracts in Ontario, will require inde- pendent legal advice, full financial dis- closure, and fair bargaining. They will not be cheap making estate planning more dangerous for lawyers and advis- ers who dabble." The Society of Trust and Estate Practitioners STEP Canada is the world's leading international organization for trust and estate practitioners, with 2,000 members across Canada and 16,500 members worldwide holding the Trust and Estate Practitioner designation (TEP). The TEP designation communicates to your clients that you have a specialized skill set in the area of trust and estate planning. If you are a lawyer, or trust professional working principally in Trust and Estate Planning, STEP Canada provides a forum for discussion, networking and advancement of practitioner knowledge through regular branch seminars, webcasts, publications, and an annual national conference. Whether you are an Experienced Practitioner with extensive experience working in estate planning, or an Emerging Practitioner, membership in STEP Canada provides you with the opportunity to enhance your expertise and practice. Diploma Program Experienced Practitioner Qualified Practitioner Vancouver Calgary Edmonton Winnipeg Ottawa Atlantic Email:memberservices@step.ca Tel:416.491.4949 ext. 221 Toll free:1.877.991.4949 ext. 221 1 Richmond Street West, Toronto, Ontario, M5H 3W4 Untitled-6 1 www.step.ca www.CANADIAN Lawyermag.com OCTO BER 2011 51 11-09-13 1:53 PM en/2011/2011sc K err v. Bar Now al) v. W no well-v- Gener ell v. T o TE ; ano wn Estat e c10/2011sca Sc w c.le No v alsh sc c10.html; orne alsh. om/ xum.org/ tin at tin yurl.c N otia (A yurl.c tt S-W om/ y