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CoVid-19 and Delayed Marriages Part 1: Break-ups

For many couples, a lot of planning goes in to their wedding day. The current global Covid-19 pandemic and State of Emergency in Ontario have thrown a wrench into the wedding plans of many couples. A cancelled wedding can cause a lot of headache - but it can also have a big impact on the legal rights of couples. Over the next few posts, our blog will be taking a look at some of these impacts. To do this, we are using hypothetical scenarios, specifically written to showcase certain issues. You should not attempt to apply these hypothetical scenarios to real-world situations: if you have questions about your own situation, please contact a lawyer.

Today's hypothetical couple is Dan and Mike. They met and began dating in early 2018, and were engaged a year later. Huge fans of comedy, they decided that April Fool's 2020 was the ideal day to get married. With CoVid-19 lockdowns forcing them to cancel their large wedding, they decide to postpone until next April 1st. They follow through on moving in together, and Mike moves into the house Dan already owns. With the closing of non-essential businesses, Mike soon loses his job, while Dan continues to work. The stress of the global pandemic and personal finances becomes too much, and Dan soon breaks up with Mike and asks him to move out.

What are Mike's legal options?

The Family Law Act and the Divorce Act give married spouses access to claims relating to property and support. The Family Law Act also gives access to some claims for support to some unmarried couples, under certain conditions.

The property rights married couples have access to include the right to remain in the marital home, and the division of "net family property". Because they are not married, Mike doesn't have access to these options (although he might have other property rights, depending on the situation). If there is no lease, Dan would most likely be able to kick Mike out of the house he owns.

Can Mike get spousal support? Well, the FLA does allow some unmarried spouses to claim spousal support. However, this option is only available to couples who have been "cohabiting" continuously at least three years. The term "cohabiting" has been interpreted many different ways, and does not always require a couple to live together. In this scenario, though, Mike and Dan have only known each other for two years, and so Mike could not make a spousal support claim. It is important to mention that even if Mike could make a spousal support claim, entitlement to spousal support is not automatic, even for married couple, as there are a number of factors which courts consider.

We can see that a cancelled marriage in this situation could have big consequences for a couple, particularly in situations like this one where wealth is uneven between the partners. But is there anything our hypothetical couple could do to avoid it?

A lawyer could help Mike and Dan draft several documents before they move in together that would help protect them both - and Mike in particular - if living together doesn't work out. These options might include a cohabitation agreement, which can deal with property and spousal support, even for unmarried couples. In this situation, a lease could also help protect Mike. A lawyer would likely also want to talk to this couple about wills and powers of attorney, to ensure that legal arrangements are in place in case one of them dies or is unable to make decisions.

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