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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.
This topic discusses Common-law Relationships now called Cohabiting Relationships and Adult Interdependent Relationships.
Cohabiting Relationships and Adult Interdependent Relationships are when two people choose to live together without getting married. This includes people of the same sex. The term living “common-law” is no longer used in Alberta laws. The law with regard to Common-law Relationships in Alberta was changed with the introduction of the concept of Adult Interdependent Relationships.
The new law is set out in the Adult Interdependent Relationships Act and has applied in Alberta since June 2003. The term living “common-law” is, however, still used in Canadian laws and there may be some differences from the Adult Interdependent Relationships Act (AIRA). For example, to qualify as “common law” for income tax purposes, there is a requirement that the parties reside together for only one (1) year. If you are living in a Cohabiting and Adult Interdependent Relationship, you should know that the relationship never becomes a marriage in the legal sense. It does not matter how long you live together.
In Alberta, the Adult Interdependent Partnership Act defines an Adult Interdependent Partner as: a person who has lived with another person in a relationship of interdependence: It provides two possible ways for such a relationship to exist:
1. If you have made a formal and valid Adult Interdependent Partner agreement with the other person. Please note that two people that are related by either blood or adoption must enter into such as agreement in order to be considered Adult Interdependent Partners. Or
2. If you are not related by either blood or adoption and if you have:
a) lived with the other person in a “Relationship of Interdependence” for at least three (3) continuous years; or
b) lived with the other person in a “Relationship of Interdependence” of some permanence where there is a child of the relationship (either by birth or adoption). Please note there is no requirement that you need to be aware that you are in an Adult Interdependent Relationship (AIR) or that you knew this legislation existed.
It is lawful to live in a Cohabiting and Adult Interdependent Relationship as long as both people are at least 18 years or over. It is also possible to live in an “AIR” with some under 18 years of age with the consent of the guardians. An individual aged 16 or 17 may enter into an “AIR”, so long as the minor’s guardian provides prior written consent.
However, it is an offence under the Criminal Code of Canada for any person to directly or indirectly touch anyone under the age of 16 in a sexual manner or to invite or incite anyone under the age of 16 to directly or indirectly touch a person for sexual purposes. A person may also be charged with a similar offence if the young person is 16 or 17 years of age. Please note that, the Criminal Code, still uses the term “common-law”.
If your Cohabiting or Adult Interdependent Relationship ends, there may be a problem with the division of your property. Property is not divided using the same rules as matrimonial property. Your property may include personal goods such as furniture and cars as well as any real estate you and your partner have acquired.
As a general rule, the property belongs to the person who paid for it. Any property you or your partner purchased belongs solely to that person. You have no legal right to the property purchased by your partner just because you have lived together for a period of time.
However, if you have contributed to the other person’s property, either directly or indirectly, you may have rights. A direct contribution would include, but is not limited to, paying for the mortgage, utilities or renovations. An example of indirect contribution would include, but is not limited to, child care, maintaining the household or decorating the household. You should consult a lawyer if you believe that you have earned a right to the property that is in the sole name of your partner and you had a long term relationship.
Property that you purchased and registered jointly makes you both legal owners. You cannot exclude your partner from the use, possession or sale of jointly-owned property. You cannot sell the property unless you have consent from the other owner. If you sell the property, you must share the proceeds equally. You or your partner may also consider buying the other person’s share in the property.
If a child is born from an Adult Interdependent Relationship, the mother is considered the sole guardian and custodial parent of the child if the father does not acknowledge himself as a parent and does not demonstrate an intention to take on the responsibilities of a guardian within one year of either becoming aware of the pregnancy or becoming aware of the birth of the child, whichever is earlier.
Otherwise, the father may apply for guardianship and parenting time with the child under the Family Law Act. Being guardian of a child gives the person the right to be involved in the supervision, care, and control of the child and the major decision-making regarding the child.
“Parenting time” means more than visiting rights. Only guardians can have parenting time. Where and when parenting time with the child occurs may be resolved by written agreement or by a Court Order. If a father makes an application for guardianship and parenting time, the Court makes its decision based on the best interests of the child.
Your partner may apply for guardianship and parenting time to your child or children from a previous relationship, provided those children resided with you and your partner for at least six (6) months.
An Adult Interdependent Partner canapply for spousal support from his or her partner after separation in Alberta. Similarly, the child of the relationship is entitled to financial support. Both mother and father are expected to financially support the child until the child reaches 18 years. Child support is required beyond 18 years if the child is still in school or is dependent in any way. If the parent of the child is not supporting the child, you should consult with a lawyer.
If a father does not voluntarily admit he is the biological father of the child, a guardian may request that a Judge declare him to be the father. A Judge will look at all the evidence including blood and DNA tests and will decide who the father is. Reasonable child support will then be set.
Your partner may also be responsible for child support relating to your child or children from a previous relationship. A Judge will consider the relationship between the child and your partner, as well as any other child support being provided for that child.
The Child Support Order and the major decision-making regarding the child may be varied if circumstances change, and the Order can be enforced across Canada.
You may adopt your Adult Interdependent Partner’s surname as long as you are not doing it for illegal reasons. If you start using a different surname, you should have your driver’s licence and credit cards changed to the new name. You may be required to keep your old name on certain other documents, such as your Social Insurance Card. In Alberta, you may not apply for a formal name change to change your surname to that of your Adult Interdependent Partner.
To fully protect the rights of partners including same-sex partners, you should draft up the necessary documents. For example, a will, an enduring power of attorney, personal directives and a cohabitation agreement should be made. If a cohabiting partner dies, he or she must be specifically named in the will to inherit the estate, otherwise a legal spouse who is also still alive can contest the will. An illegitimate child of a deceased man who has acknowledged paternity or has been declared to be the father of the child may be eligible to inherit. To protect your interests you should contact a lawyer. If no will exists, an Adult Interdependent Partner has the same rights as a married person to inherit property. A child from an “AIP” relationship would be treated as a child from a marital relationship.