In the October 2011 issue of Canadian Lawyer there is a good article on this whole issue entitled "Common Law Couples - til death do they part."  The author gives, in part, a summary of some of the legislation in other provinces as it has evolved to provide for common law spouses:

• In Alberta, there is the Adult Interdependent Relationships Act and other legislation that "provide surviving spouses and common law partners the same rights to claim support from the estate and share in the deceased estate on intestacy [with the exception of the Dower Act]." 
• In Manitoba, "major legislative amendments were proclaimed in 2004 such to create The Common-Law Partners’ Property and Related Amendments Act...Now in Manitoba, a common law partner is able to claim a share of a person’s estate if they’ve died without a will."
• In Saskatchewan, "the Wills Act, 1996, The Administration of Estates Act, The Intestate Succession Act, 1996, The Dependants’ Relief Act, 1996, and The Family Property Act all treat married 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.

David M. Smith - Click here for more information on David Smith. 

In the recent case of Hooper (Estate) v. Hooper, 2011 ONSC 4140, the court discusses the concept of fiduciary duty.  In Hooper, the estate trustee, who did not defend the proceedings against him, placed himself in a fiduciary relationship with respect to not only the deceased, but also in relation to the other named beneficiaries. 

The court commented that when a person in such a fiduciary position fails to pass accounts or otherwise account for his or her actions, he or she can be required to repay the amount unaccounted for to the estate. Breach of such a special relationship gives rise to wide array of equitable remedies.  Such equitable remedies are always subject to the discretion of the court, and are designed to address not only fairness between the parties, but also the public concern about the maintenance of the integrity of fiduciary relationships.

In exercising its equitable discretion, the court is concerned not only with compensating a wronged plaintiff, but also with upholding the obligations of good faith and loyalty, which are the cornerstone of the concept of fiduciary duty. 

The freedom of the fiduciary is limited by the nature of the obligation he or she undertakes, an obligation which “betokens loyalty, good faith and avoidance of a conflict of duty in self interest.”  In short, equity is concerned not only to compensate the plaintiff, but to enforce the trust which is at its heart.

Fiduciary duties are clearly those which should never be entered into lightly or on an uninformed basis.

Sharon Davis - Click here for more information on Sharon Davis. 

The first of these is a claim for dependant support found in Part V of the Succession Law Reform Act, whereby a common law spouse (or any other “dependant” of the deceased)  can ask for support where no adequate provision has been made for the dependant by the deceased.  

The Court has broad discretion to grant relief that, according to section 62(3) of the Act, can take a variety of forms, including the transfer, use or occupation of specified property in satisfaction of the dependant’s need for support.  

In many situations involving long-term common law relationships, there may also be an argument for equitable (as opposed to legal) ownership of property by the surviving common law spouse. These rights will be founded on the principles of unjust enrichment and include, for example, resulting or constructive trust, and proprietary estoppel.

The Supreme Court of Canada has recently considered two cases that provide guidance on unjust enrichment in the context of common law relationships. The Court released one decision in the matters of Kerr v. Baranow, and Vanasse v. Seguin, which I will be discussing in the next couple of blogs.    

Sharon Davis - Click here for more information on Sharon Davis. 

Fraudulent concealment is a common law doctrine that operates in equity to defeat  limitations defences where:

1)      The defendant and plaintiff are engaged in a special relationship with one another;

2)      Given the special or confidential nature of their relationship, the defendant's conduct amounts to an unconscionable thing for the one to do towards the other; and

3)      The defendant conceals the plaintiff's right of action, either actively, or as a result of the manner in which the act that gave rise to the right of action is performed.

Fraudulent concealment is not a rule of construction like the discoverability rule. It is an equitable principle that prevents a limitation period from operating “as an instrument of injustice”. It is aimed at preventing unscrupulous defendants who stand in a special relationship with the injured party from using a limitation provision as an instrument of fraud. See Giroux Estate v. Trillium Health Centre, 2005 CanLII 1488 (ON C.A.)

The fraudulent concealment necessary to postpone a limitation period need not amount to deceit or common law fraud. It is sufficient if the conduct, having regard to some special relationship between the parties, is an unconscionable thing for the one to do towards the other. See Guerin v. The Queen, [1984] 2 S.C.R. 335

For more information on limitation periods and an excellent in-depth analysis of the effect of the Limitations Act, 2002, see Anne Werker, “ Limitation Periods in Ontario and Claims by Beneficiaries” (2008) 34:1 The Advocates Quarterly, 1.

Perhaps now would be a good time to take a minute to check on a few limitation periods - just in case!

Sharon Davis

Sharon Davis - Click here for more information on Sharon Davis.