Provincial legislation in several provinces concerning the division of matrimonial real property off reserves has been restricted to marriages sanctioned by provincial government authorities and does not apply to the dissolution of common law relationships. However matrimonial property legislation does extend to the dissolution of common law relationships in British Columbia, Saskatchewan, Quebec, Nova Scotia, Yukon, Northwest Territories and Nunavut.

The different treatment of common law relationships from married couples in regard to matrimonial real property issues was a real concern for the vast majority of Focus Group participants. It was noted that there are many First Nation people living on reserve engaged in long-term conjugal relationships outside of marriage (both opposite-sex couples and same-sex couples).

Off reserve, there are certain remedies available apart from the provisions of statutes, through "judge-made" law. As Dr. Martha Bailey notes:

"Under the common law doctrine of unjust enrichment or the Civil Code provisions on partnership, contract or unjust enrichment, a party to a marriage-like relationship may obtain a share of property based on the party's contribution."¹³⁵

Statutory exclusions of common law couples nevertheless have been attacked using Charter equality arguments. In Miron v. Trudel¹³⁶, the Supreme Court of Canada concluded that marital status is an analogous ground of discrimination to those listed in s. 15 of the Charter of Rights and Freedoms. As a result, legislated discrimination against common-law spouses can be contrary to section 15 and requires justification under section 1 of the Charter (reasonable limitation in a free and democratic society).

In the Miron case, the Supreme Court held that exclusion of unmarried partners from accident benefits under a statutory insurance scheme available to married partners violated s. 15(1) of the Charter. In its ruling the Court found that discrimination based on marital status touches the essential dignity and worth of the individual in the same way as other recognized grounds of discrimination, and that marital status possesses characteristics often associated with recognized grounds of discrimination under s. 15(1). Further, the Court determined that persons involved in an unmarried relationship constitute a historically disadvantaged group, even though the disadvantage has greatly diminished in recent years.

Since the decision in Miron, legislative exclusion of common law partners from provincial matrimonial property laws has been called into question in some provinces by Charter litigation. Section 15 equality arguments have been made that the absence of the same statutory rights and remedies for common-law partners as married couples (such as an order for interim possession of the family home) is unconstitutional, in situations involving estates¹³⁷ and in a matrimonial property context.¹³⁸ Provisions of the Matrimonial Property Act of Nova Scotia were held unconstitutional in Walsh v. Bona¹³⁹ because of the exclusion of common-law spouses from the definition of spouses under the Act. In the Walsh case, a woman sought an equal division of the assets of herself and her common-law husband who had lived in a common-law relationship for approximately ten years prior to its termination. The appellant, Walsh, brought her action under the provincial Matrimonial Property Act (MPA) which did not include, or did not recognize, common-law spouses for the purposes of dividing matrimonial real property. The Nova Scotia Court of Appeal found this exclusion to be a violation of s. 15 equality rights. More specifically the Court stated:

The affront to the appellant's human dignity by the MPA is the fact that the MPA recognizes that a legally married spouse contributes to the marriage relationship, financially, and in other ways (e.g., raising a family). The MPA also recognizes that these contributions allow a married couple to accumulate matrimonial assets. The appellant enjoys no such recognition. She must resort to equitable principles of resulting trust and unjust enrichment, and I have already referred to the difficulties associated with those remedies. The appellant's dignity is violated against because her relationship with the respondent is considered less worthy of recognition than the relationship of a married couple; and as a result, she is denied access to the benefits of the MPA.¹⁴⁰

The Nova Scotia Court of Appeal did not find this distinction between married couples and common-law couples justified under s. 1 of the Charter as "demonstrably justified in a free and democratic society". In doing so, the Court noted that both the Northwest Territories and the Nunavut Territory have adopted legislation to provide those in a marriage relationship and those in a common-law relationship the same rights with respect to property and assets. This appeal was heard by the Supreme Court of Canada in June of 2002 and judgment rendered in November 2002.¹⁴¹ The Supreme Court of Canada in Walsh v. Bona decided that the Charter does not require that provincial laws extend matrimonial property rights to common-law couples as these laws do for married couples. However, the Walsh decision does not necessarily prevent provinces from extending marriage-like rights and obligations to people in common-law relationships in certain circumstances. In Walsh, the SCC emphasized the importance of respecting persons' personal choice to marry or not, and the historic difference in legal obligations attached to state of marriage versus common law relationships. As the headnote for the majority decision states:

Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount. The decision to marry or not is intensely personal. Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist. This effectively nullifies the individual's freedom to choose alternative family forms and to have that choice respected by the state. Although there has been growing recognition that common law spouses should be subject to the same spousal support regime as married spouses, this recognition does not extend to a division of matrimonial property, as different principles underlie the two regimes. The objective of matrimonial property division is to divide assets according to a property regime chosen by the parties, either directly by contract or indirectly by the fact of marriage, while the main objective of support is to meet the needs of spouses and their children. The support obligation is non-contractual and responds to situations of dependency that may occur in common law relationships.

Legislatures may take this element of personal choice into account by allowing common-law (whether opposite-sex or same-sex couples) to opt into family property schemes as Quebec and Nova Scotia recently have done.

In the meantime, the Government of Nova Scotia has undertaken some significant administrative and legal reforms. The Law Reform (2000) Act¹⁴² is omnibus provincial legislation recognizing rights for common law partners (whether of the opposite-sex or same-sex) parallel to those of married couples of the opposite-sex in many areas of provincial law such as matrimonial property, family maintenance, tax, statutory compensation schemes and vital statistics among others.

The Matrimonial Property Act (Nova Scotia) continues to define "spouse" as "either a man or a woman who are married to each other".¹⁴³ The Law Reform (2000) Act defines "common-law partner" as "an individual who has cohabited with the individual in a conjugal relationship for a period of at least two years, neither of them being a spouse".¹⁴⁴ It is not clear whether the statutory definition of "spouse" would include persons married by Aboriginal customary law. "Common-law partner" clearly includes couples of the opposite-sex or the same-sex in a conjugal relationship. Under amendments to the Vital Statistics Act, common-law partners may register as "domestic partners" and as a consequence, have many of the same legal benefits and obligations as "spouses" (opposite-sex partners who are married).¹⁴⁵ This includes rights respecting division of property upon termination of a registered domestic partnership. Upon registration of a domestic-partner declaration, domestic partners as between themselves and with respect to any person, have as of the date of registration the same rights and obligations as a "spouse" under the Matrimonial Property Act¹⁴⁶ Termination of partnerships may be registered by Vital Statistics. A termination occurs if:

• both partners file a Statement of Termination with Vital Statistics
• both partners enter into a separation agreement in accordance with the Maintenance and Custody Act
• both partners live apart for at least one year and one partner files an affidavit with Vital
• Statistics to register the termination
• one partner marries a third party.¹⁴⁷

In Watch v. Watch¹⁴⁸, the Saskatchewan Court of Queen's Bench read common-law spouses into the definition of "spouse" in the Matrimonial Property Act, 1997 and granted interim exclusive possession of the matrimonial home and its contents to the woman applicant. The Court held that the definition of "spouse" in the Matrimonial Property Act, 1997, which does not include common-law spouses, violates s. 15(1) of the Canadian Charter of Rights and Freedoms as it discriminates against couples in common-law relationships based on the analogous ground of marital status.As mentioned in an earlier section of this paper, the Modernization of Benefits and Obligations Act¹⁴⁹ has introduced some changes to the Indian Act that recognize common-law partners on the same footing as married couples for the purposes of the Act. After one year of co-habitation, a couple may be recognized for some purposes under the Indian Act as equivalent to a legally married couple. This is done by adding and defining the term "common-law partner". Unless a court reads "spouse" in the Indian Act as also including persons in an Aboriginal customary marriage, couples married by custom would have to wait one year for recognition under the Act as "common-law partners". The Modernization of Benefits and Obligations Act affects only a few provisions of the Indian Act, which remains completely silent on the subject of matrimonial real property.

Apart from protections and rights under provincial statutory law in relation to matrimonial real property, there are additional rights available under principles of trust law developed through court decisions. The equitable principle of constructive trust has been applied to married couples and to common law relationships to prevent unjust enrichment by one partner at the expense of the other in respect to property that under legislation is typically considered "matrimonial property". Where a partner can establish by the evidence his or her contribution to the value of an asset held by the other partner, the courts can make a finding of the contributing spouse's interest in theproperty, regardless of whether there was a common intention that the contributing spouse take a beneficial interest.¹⁵⁰

The doctrine of resulting trust can be applied requiring the partner holding title to it for the benefit of himself and the contributing person.

Since the Supreme Court rulings in Derrickson and Paul, there have been at least two cases that have concluded that some of the equitable and common law remedies available to parties in a property dispute off-reserve cannot apply on reserve to alter possession of lands as determined by the provisions of the Indian Act. For example, it appears that the common law and equitable remedies of trust are not applicable on reserve to resolve disputes over individual possession within the community. In Sault v. Jacobs, the Ontario Superior Court held that the principles of trust law conflict with the provisions of the Indian Act. This case involved a dispute between two religious congregations of First Nation people over the use of land for which three persons in one congregation had a Certificate of Possession, but which was occupied by another congregation.¹⁵¹ V.W. v. R.N.S. is a case concerning the respective property rights of a couple in a common-law relationship who were members of the same band. The Ontario Court of Justice held that "for the same reasons that matrimonial property legislation is inoperative in so far as it purports to affect real property situate on a reserve, the common law remedy of constructive trust cannot be imposed so as to alter the ownership of rights to possession of real property on reserve." ¹⁵² The Court did add, however, that this conclusion did not foreclose the granting of a personal remedy of unjust enrichment (payment of monetary compensation equivalent to the interest of party taken advantage of by the other).

In Miller v. Miller, a case decided before the Derrickson and Paul cases, a decision of the Ontario County Court applied these equitable trust principles in a case where a married woman claimed for her contribution in work, money and money's worth during the marriage to properties held in her husband's name.¹⁵³ In Miller, the court found that the wife had contributed directly and indirectly to the assets and found a resulting trust and a constructive trust and ordered the husband to pay the wife a sum of $15,000 as the value of the trust. Miller would appear to be wrongly decided in view of the principles in Derrickson and Paul.

In Simpson v. Ziprick¹⁵⁴, a decision of the B. C. Supreme Court, the court relied on the Supreme Court of Canada ruling in Derrickson, in finding that the provincial Partition Act was inconsistent with the Indian Act and therefore did not apply to reserve lands. This case involved a dispute between a father and one of his daughters who held a Certificate of Possession in reserve lands by joint tenancy. The father sought a partition of their interests in the land by seeking application of the Partition Act. However the B.C.S.C. felt it was bound by an earlier decision of the B.C. Court of Appeal that the transfer from Ziprick (the father) creating the joint tenancy was to one of his daughters in trust for herself and her three sisters. Thus, a trust can be created in reserve lands whereby one party can hold an interest under a Certificate of Possession for the benefit of others. It appears however that trust doctrines such as resulting trust and constructive trust cannot be used to alter the legal interest a band member may have as a result of a Certificate of Possession issued under the authority of the Indian Act

In any event the remedies that are available off reserve for persons in a common-law relationship seeking orders respecting division of property are not easy to obtain. This was noted by the Court in Walsh v. Bona:

...the fact that the appellant might be able to avail herself of the equitable remedies of unjust enrichment and resulting trust, can hardly be equated with the presumptive rights that a married person enjoys under the MPA. Pursuing such equitable remedies is difficult, time consuming, costly and uncertain (see for example, Peter v. Beblow, [1993] 1 S.C.R. 980). If the appellant must resort to these equitable remedies, she has the burden of proof on several issues. She must prove that she made a contribution related to the acquisition of property, the value of that contribution, and that there was a reasonable expectation of receiving compensation. Another difficulty, associated with such equitable remedies, is that it may not be easy to marshal the necessary evidence in the context of a spousal relationship."¹⁵⁵

Overall, it appears that couples in common-law relationships have more difficulty accessing remedies under the common law or equity respecting matrimonial real property on reserve compared to common-law couples off reserve. Further, common-law couples have no access to statutory rights or remedies respecting matrimonial real property on reserve (the same position as married couples in respect to matrimonial real property on reserve with the exception of valuation and an order of compensation). Finally, common-law couples on reserve like common-law couples off reserve are excluded from most provincial (but not all territorial) laws respecting the division of personal property (until Charter challenges bring about statutory change). The Indian Act has been recently amended to begin treating common-law spouses in the same way as married persons for some purposes but these amendments do not affect the issue of matrimonial real property because the Act is entirely silent on the subject.

In Quebec, L'assemble Nationale du Quebec has passed Bill 84, An Act instituting civilunions and establishing new rules of filiation.¹⁵⁶ This Act brings about a number of significant changes in the status of opposite sex couples living together outside marriage and same sex couples. The Act establishes a "civil union" that is available to couples of the opposite sex or the same sex, and recognizes many rights and obligations parallel to couples married under provincial law. Article 521.1 of the amended Civil Code defines a civil union as follows:

A civil union is a commitment by two persons eighteen years of age or over who express their free and enlightened consent to live together and to uphold the rights and obligations that derive from that status.A civil union may only be contracted between persons who are free from any previous bond of marriage or civil union and who in relation to each other are neither an ascendant or a descendant, nor a brother or a sister.¹⁵⁷

In the English language, the Act replaces references to "spouse" with "married or civil union spouse" and references to "spouses" with "married or civil union spouses". The Bill also amended Article 365 of the Civil Code by changing, the description of marriage as "between a man and a woman" to "between two persons".¹⁵⁸ Any official licensed to conduct marriages in Quebec may marry couples of a civil union. This would apparently include persons within the Mohawk community who are designated by the community and the Quebec Minister of Justice to have authority to carry out marriages.¹⁵⁹ Federal law, such as the Divorce Act, is of course not affected by these changes to provincial law respecting the definition of marriage. However, Bill 84 offers a process for dissolving civil unions by a notarized joint declaration of dissolution or by judgment of court. The amended Civil Code, as a provincial law, cannot affect real property interests on reserve in Quebec. The result is that the Civil Code retains a distinction between "marriages" (redefined to refer to "two persons") and the new institution of "civil unions". The rules respecting family patrimony in Article 415 are tied to the institution of marriage by virtue of Article 414. It would appear then, that persons in civil unions (whether opposite sex or same sex) do not have access to the law respecting family patrimony.

The principle of family patrimony and the new processes in Bill 84 for addressing real property issues between spouses in civil unions whether of the same sex or opposite would not apply to real property interests on reserves in Quebec (or elsewhere) by virtue of the principles in the Derrickson and Paul cases.

Quebec and Nova Scotia have taken the approach of leaving common law couples to decide to opt into the significant legal obligations of their respective matrimonial property laws, by entering into agreements and providing a system of registration of such unions. This allows couples who are in a conjugal relationship but do not consider themselves a "family" or do not wish to take on statutory obligations with respect to matrimonial property, to exercise this choice. This element of choice thus distinguishes the application of matrimonial property legislation to common law and same sex couples under these legislative schemes from married couples.

¹³⁵ Dr. Martha Bailey, Marriage and Marriage-Like Relationships, (Ottawa: Law of Commission of Canada, 2001) at http://www.cdc.gc.ca.

¹³⁶Miron v. Trudel [1995] 2 Canada Supreme Court Reports 418 (S.C.C.).

¹³⁷Armbrust v. Ferguson [2001] Saskatchewan Judgments No. 703 (Sask. C.A.).

¹³⁸Walsh v. Bona[2000] Nova Scotia Judgments No. 117(N.S.C.A.); Watch v. Watch [1999]Charter of Rights Decisions 42.20.40-05 (Sask, Q.B.).

¹³⁹Walsh v. Bona [2000] Nova Scotia Judgments No. 117(N.S.C.A.); appeal granted in Nova Scotia (Attorney-General) v. Walsh 2002 SCC 83. File No.: 28179.

¹⁴⁰Walsh v. Bona [2000] Nova Scotia Judgments No. 117(N.S.C.A.) at para 50.

¹⁴¹Supra, note 139.

¹⁴²Law Reform (2000) Act, S.N.S. 2000. C. 29.

¹⁴³More specifically, s. 2 (g) of the Matrimonial Property Act, R.S.N.S. 1989,C. 275 (as amended 1995-96, c. 13, s. 83) provides:
"spouse" means either of a man and woman who

1. are married to each other,
2. are married to each other by a marriage that is voidable and has not been annulled by a declaration of nullity, or
3. have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year, and for the purposes of an application under this Act includes a widow or widower.

¹⁴⁴Law Reform (2000) Act, Part IX.

¹⁴⁵Law Reform (2000) Act, Part X; Domestic Partnerships Registration Regulations, (Nova Scotia) O.I.C. 2001-263 (May 31, 2001, effective June 4, 2001), N.S. Reg. 57/2001.

¹⁴⁶Law Reform (2000) Act, Part X.

¹⁴⁷Province of Nova Scotia, Department of Justice "Domestic Partnerships",at www.gov.ns.ca/just/dompar.html and Domestic Partnerships Registration Regulations, (Nova Scotia) O.I.C. 2001-263 (May 31, 2001, effective June 4, 2001), N.S. Reg. 57/2001.

¹⁴⁸Watch v. Watch [1999] Charter of Rights Decisions 42.20.40-05 (Sask, Q.B.).

¹⁴⁹Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 148-152

¹⁵⁰Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 148-152

¹⁵¹Sault v. Jacobs [2001] Ontario Judgments No. 1996 (O.S.C.J.).

¹⁵²V.W. v. R.N.S. [1998] Ontario Judgments No. 4889 (O.C.J. Gen. Div.).

¹⁵³ Miller v. Miller [1983] Ontario Judgments No. 936 (Ont. Co. Ct.).

¹⁵⁴Simpson v. Ziprick [1995] B.C.J. N^o. 1740 (B.C.S.C.).

¹⁵⁵Walsh v. Bona [2000] Nova Scotia Judgments N^o . 117 (N.S.C.A.) at para 49.

¹⁵⁶Bill 84, An Act instituting civil unions and establishing new rules of filiation, 2nd sess., 36th Leg. Que. (adopted 7 June 2002, in force as of 24 June 2002).

¹⁵⁷Article 521.1, C.C.Q.

¹⁵⁸Clause 22 of Bill 84, An Act instituting civil unions and establishing new rules of filiation, 2nd sess., 36th Leg. Que. (adopted 7 June 2002, in force as of 24 June 2002).

¹⁵⁹Article 366 of the Civil Code of Quebec addresses the authority of persons to conduct marriages in Quebec including this joint Quebec/Mohawk process of designating officials to conduct marriages in the Mohawk community.

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