How The Court Defines An Unmarried Couple

We are seeing more and more couples opting to not get married and instead live together in what is often described as a “common law” relationship. In Alberta the Adult Interdependent Relationships Act (AIRA) helps the court define those relationships that are not married but could be construed as being “like marriage.”

When the relationship breaks down, or when someone passes away, without defining the relationship, it is often left for a Judge to decide what the nature of the relationship was. Recently, an article from the CBC highlighted how difficult of a task that it can be. Under the AIRA, parties become Adult Interdependent Partners or “AIP’s” if they (1) have children together or (2) enter into an agreement that defines them as AIP’s or (3) live in a relationship of interdependence for at least three years.

It is the third indicator that has caused the development of jurisprudence in the area. Particularly when the relationship fails and a party is seeking partner support (which is the equivalent of spousal support under the Divorce Act). Under section 1(2) of the AIRA the legislation sets out 9 factors that the court is to consider in determining whether two persons functioned as an economic and domestic unit to determine if it, in fact, was a relationship of interdependence. Those factors are:

1. Whether or not the persons have a conjugal relationship;
2. The degree of exclusivity of the relationship;
3. The conduct and habits of the persons in respect of household activities and living arrangements;
4. The degree to which persons hold themselves out to others as an economic and domestic unit;
5. The degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;
6. The extent to which direct and indirect contributions have been made by either person to the other or their mutual well-being;
7. The degree of financial dependence or interdependence and any arrangements for financial support between the persons;
8. The care and support of the children;
9. The ownership, use and acquisition of property.

These factors codified what the courts had already been looking at when determining the nature and quality of this type of relationship. In fact, similar queries were made in the 1980 case of Molodowich v. Penttinen by the Ontario District Court. In the more recent decision of Medora v. Kohn, 2003 ABQB 700, Justice C.L. Kenny held that the factors in the AIRA are to be considered holistically and a failure to satisfy one factor is not fatal to meeting the definition of an AIP under the AIRA.