Common Law New Brunswick

Common-law relationships in New Brunswick

This article explains how New Brunswick law treats common-law relationships in the key areas that matter when a relationship ends: property, support, children and estates. It also explains how a cohabitation agreement can be used to change those default rules.

When are you “common-law” in New Brunswick?

There is no single definition of “common-law” that applies in every context. Canada Revenue Agency, CPP, immigration and private benefit plans all have their own tests.

Spousal Support

In regards to spousal support, New Brunswick’s Family Law Act creates support obligations between “spouses” and extends those obligations to common-law partners. A common-law partner is a person who cohabits in a conjugal relationship with another, and the support provisions apply if either:

(a) The partners have cohabited continuously in a family relationship for at least three years; or

(b) They have cohabited in a relationship of some permanence and are the parents of a child together.

Once that threshold is met, the analysis for whether support is payable, in what amount, and for how long is the same as for married spouses.

Property rights: common-law partners do not share like married spouses

The New Brunswick Marital Property Act does not apply to common-law couples. The statutory rules that divide marital property as between spouses are available only to people who are legally married.

If you are in a common-law relationship, ownership follows legal title. Whoever’s name is on the deed, vehicle registration, bank account or investment statement is the legal owner of that asset. Jointly-titled assets are owned in accordance with that title, often in equal shares. There is no presumption that everything acquired during the relationship is shared 50/50 merely because you lived together, no matter how long.

Unjust enrichment and constructive trusts

If each party keeping what is in his or her name is unfair, the main tool available to an unmarried partner is a claim for unjust enrichment.

Canadian courts use a three-part test:

1. The other person has been enriched. For example, they end up with a mortgage-free or substantially improved home that you helped pay for or renovate.

2. You have suffered a corresponding deprivation. You put your own money, effort, or lost opportunities into that property and received nothing in return.

3. There is no legal reason for you to walk away empty-handed (for example, it was not clearly a gift, and there is no contract that already deals with it).

If you prove unjust enrichment, the court then decides how to fix the unfairness. That can be done in two main ways:

1. A money award, often based on the value of your contributions or the increase in value you helped generate; or

2. A constructive trust, which gives you an actual ownership interest in the property, such as a percentage of the home.

However, these claims are fact-heavy: you usually need records of who paid what, who did what work, and how the property’s value changed. They are expensive: they often require a trial and sometimes expert evidence. They are uncertain: the court is not required to divide things equally; it will tailor the remedy to the proven contributions and circumstances.

Children: marital status does not matter

For children, New Brunswick law is neutral about whether the parents are married, common-law, or never lived together at all.

Child support

Under the Family Law Act, every parent has a legal duty, to the extent of their ability, to support their child. The child’s right to support does not depend on whether the parents were married. Whether you were married or common-law has nothing to do with the basic obligation to pay child support.

Decision-making responsibility and parenting time

Similarly, when the court is asked to make orders about where a child will live, how parenting time will be arranged, and who will make major decisions about the child’s health, education and general welfare, the only guiding principle is the best interests of the child. The parents’ marital status is irrelevant.

Estates: the hardest blow for common-law partners

If someone dies without a will, their estate is distributed according to the Devolution of Estates Act. That legislation sets out a scheme for who receives the deceased’s property by default. It gives strong rights to a surviving spouse, but in New Brunswick that word means a legally married spouse. Common-law partners are not included in the statutory list of intestate heirs. If you die without a will, your common-law partner does not automatically inherit anything under the intestacy rules.

Dependants’ relief under the Provision for Dependants Act

New Brunswick does have a limited safety net for dependants who are left with inadequate provision. The Provision for Dependants Act allows a dependant to apply to the Court for an order that the estate provide reasonable maintenance and support.

A “dependant” includes not only a married spouse and children, but also any person who was a dependant under the Family Law Act at the time of death. Because the Family Law Act extends support obligations to common-law partners as discussed above, a financially dependent common-law partner can qualify as a “dependant” and ask the court to order support from the estate.

However, this is not the same as being treated like a married spouse on intestacy. There is no automatic share of the estate. The surviving partner must prove that they were financially dependent and that the deceased did not make adequate provision. The remedy is usually a support-type payment, not an ownership interest in particular assets. Bringing such a claim involves time, legal cost and uncertainty.

Cohabitation agreements: how to “opt in” to fair rules

Given the gaps in property and estate rights, many common-law couples in New Brunswick turn to cohabitation agreements to create a private legal framework for what will happen if the relationship ends.

A cohabitation agreement is a written contract between partners who are living together, or plan to live together, but are not married. New Brunswick law recognises domestic contracts dealing with property and support between unmarried partners who cohabit. In a cohabitation agreement, you can decide how property will be owned and divided if you separate, address spousal support in advance, within limits and deal with certain estate planning issues.