When making testamentary or inter vivos gifts, parents sometimes want to ensure that provision is made for the spouses of their children, whether it is by including such individuals as potential beneficiaries of trusts or as recipients of outright gifts. 

However, the term “spouse” can have many different legal meanings depending on the context involved.  For example, the Family Law Act (Ontario) provides for two different definitions of the term “spouse”.  The first definition of “spouse” applies for property division purposes, and is restricted to persons who are married to one another or have together entered into a marriage that is void or voidable.  The second definition of “spouse” applies for spousal support purposes, and adds to the previous definition of “spouse” persons who are not married to each other but who have cohabited continuously for a period of at least three years or who are in a relationship of some permanence, if they are the natural or adoptive parents of a child.

This latter definition of “spouse” includes what are commonly known as “common law spouses” or “common law partners”.  However, these terms can also have different legal meanings.  For example, the definition of “common law partner” for the purposes of the Income Tax Act (Canada) includes persons who have cohabited together in a conjugal relationship for a continuous period of at least one year whereas the Family Law Act (Ontario)’s extended definition of “spouse” only includes cohabiting couples who have lived together for less than three years in the event that they are the natural or adoptive parents of a child.

Moreover, as a result of the breadth of the term “spouse” and its ability to encompass both cohabiting non-married couples and married couples, it is possible for an individual to be considered to have more than one spouse at the same time (e.g., someone who is separated but not divorced and who has entered into a long term relationship with a new partner).

As a result, in order to avoid administrative complexity and potential disagreements, specificity is important in the drafting of documentation giving effect to testamentary or inter vivos gifts. Consideration should be given as to the person or persons who should qualify as “spouses” and under what circumstances such person or persons should cease to be considered “spouses”.

Thanks

Laura West