Review Panel on Common Law Relationships
Opinion on Common-Law Relationships of Jennifer Cooper

Volume 2
Proposed Statute Changes

Proposed Changes to the
Law of Property Act

Current Act: should read Proposed Act:
Definitions

1 In this Act,

  Definitions

1 In this Act,

"common-law partner" means a person who, not being married to the other person, cohabited with him or her in a conjugal relationship

(a) for a period of not less than 3 years, or

(b) for a period of at least one year and they are together the parents of a child.

Partition or sale without Homesteads Act consents

19(2) Where a person to whom subsection (1) applies is a married man or a married woman, an action for partition or sale of the land may be brought by or against him or her; and

(a)partition; or

(b)where in the opinion of the court, the land cannot reasonably be partitioned, sale thereof in lieu of partition;

may be ordered by the court without the consent of any party to the action, and without the consent of his or her spouse having been obtained as provided in The Homesteads Act.

  Partition or sale without Homesteads Act consents

19(2) Where a person to whom subsection (1) applies is a married man or a married woman or a common-law partner, an action for partition or sale of the land may be brought by or against him or her; and

(a)partition; or

(b)where in the opinion of the court, the land cannot reasonably be partitioned, sale thereof in lieu of partition;

may be ordered by the court without the consent of any party to the action, and without the consent of his or her spouse or common-law partner having been obtained as provided in The Homesteads Act.



Law of Property Act

Current Act: should read Proposed Act:
Value of inchoate homestead right and payment thereof

24 Where a married man or a married woman is a party to the action, the court shall, in case of sale, determine the value of any rights under The Homesteads Act of his or her spouse according to the principles applicable to deferred annuities and survivorships, and shall order the amount of that value to be paid out of the share of the purchase money to which the married man or the married woman is entitled, or shall order the payment to the spouse of the married man or the married woman out of the share of the purchase money to which the married man or the married woman is entitled, of an annual sum, or of such income or interest as is provided in section 23; and the payment shall be a bar to any right or claim under The Homesteads Act.

  Value of inchoate homestead right and payment thereof

24 Where a married man or a married woman or a common-law partner is a party to the action, the court shall, in case of sale, determine the value of any rights under The Homesteads Act of his or her spouse or common-law partner according to the principles applicable to deferred annuities and survivorships, and shall order the amount of that value to be paid out of the share of the purchase money to which the married man or the married woman or common-law partner is entitled, or shall order the payment to the spouse of the married man or the married woman or to the common-law partner out of the share of the purchase money to which the married man or the married woman or the common-law partner is entitled, of an annual sum, or of such income or interest as is provided in section 23; and the payment shall be a bar to any right or claim under The Homesteads Act.



Law of Property Act

Current Act: should read Proposed Act:
Written consent of spouse

32(3) In the case of cohabiting spouses, no assignment made by either spouse of wages to be earned by that spouse in the future is valid unless the written consent of the other spouse to the making of the assignment is attached thereto or endorsed thereon.

  Written consent of spouse or common-law partner

32(3) In the case of cohabiting spouses No assignment made by either a spouse or a common-law partner of wages to be earned by that spouse or common-law partner in the future is valid unless the written consent of the other spouse or common-law partner to the making of the assignment is attached thereto or endorsed thereon.

Unmarried cohabitants included

32(4) The expression "cohabiting spouses" in subsection (3) includes a man and woman who, not being married to each other,

(a) 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

(b) have cohabited for one year or more and have a dependent child born of their relationship.

  Unmarried cohabitants included

32(4) The expression "cohabiting spouses" in subsection (3) includes a man and woman who, not being married to each other,

(a) 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

(b) have cohabited for one year or more and have a dependent child born of their relationship.

 

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Opinion on Common-Law Relationships of
Jennifer A. Cooper, Q.C. - Volume 2

Proposed Changes to the Law of Property Act
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Intestate Succession Act Legislative Assembly Act
Review Panel on Common-Law Relationships
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.