How Long Must You Live Together to Be Common-Law in Nova Scotia?

Many couples in Nova Scotia ask whether they have reached a magic number of years after which they are legally common-law. The honest answer is that it depends on which law you are asking about.

Tax rules, benefit programs, support claims and inheritance rules each use their own definitions. This article explains how to approach the question and where parenting and child support fit in.

This article covers the law of Nova Scotia.

Why there is no single answer

Different laws were written for different reasons, so each one decides for itself who counts as a partner. One program may count you after a certain period of living together, while another may look at the nature of the relationship rather than a fixed time.

Because definitions change and each one has its own wording, you should check the current rule for the specific purpose that matters to you. A lawyer or accountant can confirm which definition applies.

How the purposes differ

What the Divorce Act covers

A divorce is granted on the ground that the marriage has broken down. That is usually shown by spouses living separate and apart for at least one year before the divorce proceeding is determined. Because divorce is about ending a marriage, it is not the process for ending a common-law relationship.

Spousal support orders under the Divorce Act consider each spouse's condition, means, needs and circumstances, including the length of cohabitation and the functions each performed. Fault is not considered. If you were not married, whether and how you can claim spousal support depends on other law, and you should get advice on your situation.

If you are married rather than common-law, a few more points apply. Spouses are treated as having lived separate and apart for any period when they lived apart and either of them intended to live separate and apart, so one spouse's intention is enough. The one-year separation is not ended just because the spouses resumed living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt. As an exception to the one-year wait, breakdown can be shown sooner if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable. The court must also satisfy itself that there has been no collusion in relation to the application. A divorce takes effect on the 31st day after the day the judgment granting it is rendered.

Parenting and child support

Parenting and child support are about the child. When the court makes parenting orders under the Divorce Act, it considers only the best interests of the child, giving primary consideration to the child's physical, emotional and psychological safety, security and well-being. Child support for a child under the age of majority is the table amount for the payor's province plus any section 7 amount. How these rules apply if you were never married depends on your situation and the law that applies, so it is worth confirming with a lawyer.

Nova Scotia family matters, including parenting and child support, are heard in the Supreme Court of Nova Scotia (Family Division). Legal aid family coverage includes matters under the Parenting and Support Act as well as the Divorce Act.

Child support can include more than the table amount. On request, the court can add section 7 amounts for child care, the child's share of medical and dental insurance premiums, health-related costs above insurance of $100 or more a year, extraordinary school costs, post-secondary education, and extraordinary extracurricular activities. These expenses are shared by the parents in proportion to their incomes, after deducting any contribution from the child. Where each parent has the child at least 40% of the time over a year, the court sets support considering the table amount for each parent, the increased costs of shared parenting, and each parent's and the child's circumstances, and this is not an automatic set-off.

The Parent Information Program is mandatory when a court application involving children is filed in the Family Division, and parents can also attend voluntarily. Court-based options for resolving disputes include conciliation, mediation with a neutral mediator who cannot make orders, and voluntary judge-led settlement conferences. Once a support order exists, the Maintenance Enforcement Program is a free service that receives payments from the payor and passes them to the recipient. Enrolling an order is optional, but the program cannot enforce an order that is not enrolled.

What to do next

• Write down the date you started living together and any date you separated.
• Keep records that show shared address, shared expenses and how you described your relationship.
• List the purpose you need an answer for: tax, a benefit, support, a will or an estate.
• Check the current definition for that purpose, or ask a lawyer or accountant to confirm it.
• Consider a cohabitation agreement and a will so your wishes do not depend on a definition.

If cost is a worry, Nova Scotia Legal Aid may be an option. An applicant is financially eligible if they qualify for benefits under the Social Assistance Act or the Employment Support and Income Assistance Act. The Commission can also find someone eligible where retaining a lawyer would cause undue financial hardship. If legal aid is refused, suspended or withdrawn, you can appeal to the Commission by written request for review.

Frequently asked questions