A. Property Legislation in Manitoba

Historically at common-law a husband and wife were considered as one person:

"By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything." ⁽⁹⁷⁾

As a result, the husband was the absolute owner of the wife's property.

This law was changed by the Rights of Property of Married Women Act assented to on May 14, 1875, wherein a married woman became entitled to own real and personal property separate from her husband, whether acquired prior to or during the marriage.

This then remained the state of the law for about 100 years: property owned by a spouse remained the separate property of that spouse and marriage [or divorce], did nothing to change that. Neither spouse had a right to make claims against the property of the other spouse upon separation or death [apart from dower rights] and, since most property was owned by men, many women were left economically compromised at separation or divorce.

Legislation passed within the past 25 years has greatly altered this law ⁽⁹⁸⁾. Significant rights have been given to spouses to secure an interest in, or right to inherit or share in, their spouse's property. A summary of this legislation follows. None of the provisions currently apply to same-sex common-law partners nor do they apply to opposite-sex common-law partners, except in a few instances where expressly noted.

Property Interests during and after the Relationship

Family Maintenance Act ⁽⁹⁹⁾

This Act applies when spouses and common-law partners separate and deals mostly with rights pertaining to child custody and support, spousal support, and protective relief. However, the Act also gives spouses certain property rights. Specifically, in the event of a separation, spouses have the right to seek exclusive occupancy of the family home and to have its sale postponed ⁽¹⁰⁰⁾. Common-law partners have no such rights in relation to the family home.

Farmlands Ownership Act ⁽¹⁰¹⁾

This Act restricts the transfer of farmland. Spouses of farmers and retired farmers are not subject to these restrictions ⁽¹⁰²⁾. Common-law partners have no such exemption from these restrictions.

Insurance Act ⁽¹⁰³⁾

This Act governs insurance contracts in Manitoba including licensing of insurers and all manner of insurance contracts including life, accident, fire, vehicle, and weather insurance. The provisions that give spouses certain property rights include:

the right to be the deemed owner of your spouse's car insurance if they should die while the insurance is in place. ⁽¹⁰⁴⁾

None of these rights are given to common-law partners.

Law of Property Act ⁽¹⁰⁵⁾

This Act covers a variety of property issues. Firstly, a spouse has the right to have property jointly held with the other spouse either partitioned or sold, without the other spouse's consent ⁽¹⁰⁶⁾. A spouse is also entitled to have his or her homestead interest valued and paid out to him or her in the event that the homestead is sold ⁽¹⁰⁷⁾. These rights are not extended to common-law partners.

Finally, a spouse is entitled to prevent their spouse from assigning their wages unless they consent ⁽¹⁰⁸⁾. This section also applies to "cohabiting spouses" which is defined as a man and a woman who, not being married to each other:

1. have cohabited continuously for three years or more in a relationship in which one of them has been substantially dependent upon the other for support; or
2. have cohabited for one year or more and have a dependant child born of their relationship ⁽¹⁰⁹⁾.

Therefore, although opposite-sex common-law partners may have some rights under this section, same-sex common-law partners do not.

Marital Property Act ⁽¹¹⁰⁾

This Act governs the sharing of assets accumulated by spouses during their marriage, or acquired in contemplation of their marriage, in the event of their separation or divorce, or the death of one of the spouses. Specifically, spouses have the right to apply to court for an accounting and equalization of their assets and debts ⁽¹¹¹⁾. An "accounting" requires that each spouse account for the value of their assets and debts as at the date of separation, or death, as applicable. After the net assets and debts have been determined for each spouse, the court "equalizes" the holdings by ordering one spouse to pay a money amount or transfer an asset or assets to the other spouse so that their holdings are equal. This transfer is called the "equalization payment". If there are insufficient assets to satisfy an equalization payment ordered by the court because the paying spouse has transferred assets to a third party for inadequate consideration, the other spouse has the right to sue the recipient of those assets ⁽¹¹²⁾.

Each spouse also has an equal right to the use and enjoyment of the family home [in the absence of a court order of exclusive occupancy] and of any other family assets [again in the absence of a court order otherwise] ⁽¹¹³⁾.

Finally, each spouse has the right to apply to court to preserve assets which the other spouse may otherwise dissipate or abscond with ⁽¹¹⁴⁾.

Spouses have the right to contract out of the Act by written agreement, called a "spousal agreement" ⁽¹¹⁵⁾. However, unless spouses specifically contract out of the Act, or a portion of the Act, the scheme of equal sharing applies.

None of these property rights are extended to common-law partners who therefore have no legislated right to an equal sharing of property upon separation or the death of their partner or to use or protect family assets during the course of the relationship.

Property Interests at Death

Intestate Succession Act ⁽¹¹⁶⁾

This Act governs what happens to a person's estate when they die without a will. The surviving spouse receives the entire estate unless the deceased had children [which are not the children of the spouse] in which case the spouse receives the first $50,000.00 and shares the balance with the children ⁽¹¹⁷⁾. A common-law partner is entitled to nothing.

Homesteads Act ⁽¹¹⁸⁾

This Act gives a spouse the right to remain in occupancy of the family home, for the balance of their natural life, if their spouse dies, even if the home is in the deceased spouse's name, and even if they have gifted the home to someone else in their will ⁽¹¹⁹⁾. The Act also prevents the family home from being sold or mortgaged without the consent of the spouse ⁽¹²⁰⁾. Common-law partners have no such right to stay in the family home, or to prevent it from being mortgaged or sold.

Wills Act ⁽¹²¹⁾

This Act provides that when a person marries, their will is considered to be revoked ⁽¹²²⁾. This effectively gives spouses a greater right to inherit their spouse's property since a prior will often leaves property to someone other than the current spouse, thereby reducing the entitlement of the current spouse. Once the will is revoked, and the spouse dies having made no further will, they are considered to have died intestate. In that case, pursuant to the provisions of the Intestate Succession Act, the spouse receives either all or most of the property in the estate. A common-law relationship does not so revoke a will and therefore a common-law partner does not receive priority treatment in the event of the death of their partner.

Further, when a person divorces, the provisions of their will which benefit their spouse are considered to be revoked unless a contrary intention appears in the will ⁽¹²³⁾. This is a benefit to a spouse who neglects to change a will after divorce when it is presumed that they would no longer wish to benefit their former spouse. This provision does not apply in the event of a termination of a common-law relationship.

Property Interests in Pensions

Pension Benefits Act ⁽¹²⁴⁾

Pension benefits earned by Manitoba employees are governed by either federal public service pension legislation ⁽¹²⁵⁾, or by this Act. The spouses of pension members are entitled to an equal share of the member's pension benefits which accrued during the marriage ⁽¹²⁶⁾. This sharing is only available to common-law partners if the pension plan member has executed and filed a declaration stating that they have a common-law partner that they intend to share their pension with.

A "common-law partner" is defined in the Act as:

"a person who, not being married to the other person, cohabited with him or her in a conjugal relationship

1. for a period of at least three years, if either of them is married; or
2. for a period of at least one year, if neither of them is married" ⁽¹²⁷⁾.

Therefore, both same-sex and opposite-sex common-law partners are included in pension sharing, but only if they have registered the relationship. Although there are no official statistics kept, information gathered anecdotally would suggest that such registration is extremely rare.

Teacher's Pensions Act ⁽¹²⁸⁾

This Act applies to all teachers in public schools. The spouses of such teachers are entitled to an equal share of the teacher's pension benefits which accrued during the marriage ⁽¹²⁹⁾. Benefits for common-law partners are available on the same conditions as under the Pension Benefits Act, namely, if there has been registration of the relationship ⁽¹³⁰⁾.

Civil Service Superannuation Act ⁽¹³¹⁾

This Act applies to provincial government employees. The spouses of such employees are entitled to an equal share of the employee's pension benefits which accrued during the marriage. Benefits for common-law partners are available on the same conditions as under the Pension Benefits Act namely, if there has been registration of the relationship ⁽¹³²⁾.

Legislative Assembly Act ⁽¹³³⁾

This Act applies to all elected members of the Legislature, including ministers, as well as certain senior public officials. Their spouses are entitled to an equal share of the official's pension benefits which accrued during the marriage. Benefits for common-law partners are available on the same conditions as under the Pension Benefits Act namely, if there has been registration of the relationship ⁽¹³⁴⁾.

Footnotes

97. Blackstone's Commentaries on the Laws of England, 4^th ed. (1771) bk.I, ch.15 at 442.
98. There has also been some significant development during the last 20 years in the law of constructive and resulting trust which applies to both spouses and common-law partners.
99. The Family Maintenance Act, R.S.M. 1987, c. F20.
100. Ibid, section 13.
101. The Farmlands Ownership Act, R.S.M. 1987, c. F35.
102. Ibid, section 4.
103. The Insurance Act, R.S.M. 1987, c.I40.
104. Ibid, section 239(3).
105. The Law of Property Act, R.S.M. 1987, c. L90.
106. Ibid, section 19.
107. Ibid, section 24.
108. Ibid, section 32.
109. Ibid.
110. The Marital Property Act, R.S.M. 1987, c. M45.
111. Ibid, section 13. It should be noted that there are some limited exceptions to the scheme of equal sharing, particularly in the case of commercial assets.
112. Ibid, section 6.
113. Ibid. Family assets are defined to include assets which are used for shelter and transportation, or for household, educational, recreational, social, or aesthetic purposes.
114. Ibid, section 18.
115. Ibid, section 5.
116. The Intestate Succession Act, S.M. 1989-90, c. 43 - Cap. I85.
117. Ibid, section 2.
118. The Homesteads Act, S.M. 1992, c. 46 - Cap. H80.
119. Ibid, section 21.
120. Ibid, section 4.
121. The Wills Act, R.S.M. 1988, c. W150.
122. Ibid, section 17.
123. Ibid, section 18.
124. The Pension Benefits Act, R.S.M. 1987, c. P32.
125. Such as The Public Service Superannuation Act and Supplementary Retirement Benefit Act, The Canadian Forces Superannuation Act, The Members of Parliament Retiring Allowances Act, The Royal Canadian Mounted Police Superannuation Act, and The Pension Benefits Standards Act, 1985 for industries which are federally regulated such as interprovincial transportation/trucking, telecommunications, banking and mining.
126. The Pension Benefits Act, R.S.M. 1987, c. P32, section 31.
127. Ibid, sections 1 and 31. Note that this definition was changed with the passage of Bill 41 which will come into force on January 1, 2002.
128. The Teachers' Pensions Act, R.S.M. 1987, c. T20.
129. Ibid, section 32.
130. Ibid, sections 1 and 2.
131. The Civil Service Superannuation Act, R.S.M. 1988, c. C120.
132. Ibid, sections 1 and 44.
133. The Legislative Assembly Act, R.S.M. 1987, c. L110.
134. Ibid, sections 69 and 90.

Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. - Volume 1 Property Legislation in Manitoba
V) Property	V b) Submissions and Consultations
Opinion on Common-Law Relationships of Jennifer A. Cooper, Q.C. Volume 1 Volume 2 (proposed Statute Amendments) Opinion on Common-Law Relationships of Hon. A.C Hamilton, Q.C. Final Report