There is a common misconception that the law treats a common law spouse the same as a married spouse for all purposes.

No doubt this misconception is contributed to, in part, by the definitions of "spouse" contained in both the Family Law Act and the Succession Law Reform Act, which each define the word "spouse" in two different ways.

In both statutes, certain sections of the statute apply only to married spouses (in traditional sense) or people who have gone through a form of marriage.

Other sections of each act enlarge the definition of spouse to encompass people who are commonly referred to as common law spouses.

For example, under the Family Law Act, the right to an equalization of family property or possession of the matrimonial home is restricted a married spouse.

However, for purpose of support payments, common-law spouses are treated the same as married spouses.

The Succession Law Reform Act which deals, amongst other things, with intestate succession (i.e. when a person dies without a will), and the right of a dependant to claim support from an estate, contains provisions similar to the above.

When a person dies without a will, subject to the payment of debts, the deceased’s estate would normally pass to his or her spouse, or children, depending upon the size of the estate.

In this case, "spouse" would mean a married spouse.

A common-law spouse would not be entitled to a share in the deceased’s estate, although he or she might be able to claim a property interest in the estate assets on other legal grounds.

On the other hand, for the purpose of claiming support from an estate, a common-law spouse would have the same rights as a married spouse to claim for support from the deceased’s estate.

Accordingly, the definition of "spouse" in both statutes changes depending upon whether the issue arises in relation to a property matter or a support matter.

To further add to the confusion, the issue of the definition of spouse is presently being challenged in the courts.

At issue is whether or not the support obligations imposed upon common law spouses can be extended to same sex individuals who form similar unions.