We use cookies and similar technologies on our website for collecting analytics, improving functionality and enhancing our services. Please see our Cookie Policy for more information and for details about how to disable cookies. By clicking "I agree" or continuing to use our website, you agree to our use of cookies and similar technologies.
You are using an outdated browser. Please upgrade your browser to improve your experience.
Historically, spouses were those that had undergone a formal marriage ceremony before a religious or secular authority. We now live in a world where the concept of a “spouse” has broadened to include a more diverse array of relationships, without the requirement of a formal ceremony. Modern legislation has evolved with this changing idea, and many laws in Canada now define the concept of “spouse” to include both those in traditional marriages, and those in “marriage-like relationships”.
The legal definition of a “spouse” can vary depending on what the law is for, or more precisely, on what the law needs to define “spouse” for. For example, the Wills, Estates and Succession Act (WESA) is concerned with defining “spouse” to determine who may be entitled to a portion of the estate of a deceased person. The Family Law Act requires a definition of “spouse” to determine if a separated couple is subject to property division, and to calculate spousal support payments. The Income Tax Act needs a definition of “spouse” to determine whether or not tax rules and exemptions apply to a taxpayer. Each of these definitions answers different policy concerns, and these differing contexts often lead to slight but important variations in who will count as a “spouse” under a particular piece of legislation.
The litigation around these different legislative definitions generally arises when it is unclear whether two people are in, or have ended, a “marriage-like relationship”, as it is not often contentious whether two people have been formally married or divorced. In many of these legal contexts, courts have applied a set of guiding factors from the leading case of Molodowich v Penttinen, 1980 CanLII 1537 (ONSC) (“Molodowich”) to determine whether a specific relationship is sufficiently “marriage-like” to make the participants “spouses”. The factors from Molodowich are:
While these factors are applied in every case where the existence of a marriage-like relationship is at issue, they are often applied with varying weight, on a case-by-case basis. Depending on the context, some are not applied at all.
Below is a table which sets out the legislative definitions for “spouse” in key legislation relating to estates or elder law. For some of them, we have also included cases that have varied the application of the factors from Molodowich.
| Legislation | Who is a spouse? | When does it start? | When does it end? | Application of Molodowich factors |
| Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181. | A person who is married and not living separate and apart; or a person |
