Common-law partners shouldn’t have to testify against each other: judge

A couple in a common-law relationship shouldn’t have to testify against each other, the same way married people can’t provide evidence in court against their spouse, ruled the Superior Court.

The spousal incompetency rule, which sees a married couple as one person in law, prohibits one spouse from testifying against the other unless the case involves one partner harming the other.

Including common-law partners in this legal protection is in line with the intent of the rule, Justice Thomas Lofchik noted in a recent addendum to an earlier decision.

“If the goal of the spousal incompetence rules and the s. 4 of the Canada Evidence Act is to promote marital harmony, there is no rational connection between such a purpose and the exclusion of common-law spouses from the benefit,” he wrote.

“While we recognize the nobility of a public commitment of two people to each to the exclusion of all others, we cannot ignore that certain couples chose for a variety reasons to make this commitment through their actions rather than by scripted words.

“Common-law couples must also be accorded respect, dignity and the benefit of the law.”

R. v. Hall, stemmed from a criminal proceeding involving a man charged with murder and his common-law partner, who told police in detail about the accused’s alleged illicit activities.

Lofchik decided the accused’s common-law partner is “neither a competent nor compellable witness for the prosecution.”

A ruling that gives common-law partners some of the legal protection of married couples is rare, says Annie Yektaeian, a family lawyer at Epstein & Associates.

“The doors are closed more often than not towards common-law couples, because there’s this overall feeling, however unexpressed, that unless you went to the trouble of having your relationship recognized by law, you cannot expect the courts and the legal system to jump into action upon that same relationship’s dissolution,” says Yektaeian.

Although common-law partners may not benefit immediately from this ruling in family law courtrooms, the logic could be used to argue for financial benefits upon breakup of such relationships, adds Yektaeian.

“The decision will be one that lawyers may cite in an attempt to establish a common-law spouse as no less deserving of certain financial protections and considerations than a married spouse.”

In family law, the most pressing issue involving common-law partners is property rights upon separation, says Ken Nathens, a certified specialist in family law at Nathens Siegel LLP.

Nathens says Lofchik’s decision is “more in line with the Charter” than a recent Supreme Court ruling involving property division.

In Quebec (Attorney General) v. A, a case about property partition of common-law partners at the end of their relationship, the Supreme Court ruled the same legal protection afforded to married couples shouldn’t apply.

The court said common-law partners could choose to marry, and since they have chosen not to, the law shouldn’t intervene and change the terms of their relationship to mirror that of a married couple’s in the face of the law.

But choice is a deceptive concept, says Julie Stanchieri of Stanchieri Family Law.

“The reality is that there is often very little choice for some people in these types of relationships,” she says. “For example, a woman in a long-term traditional common-law relationship who has stayed at home for many years has little recourse if her partner does not wish to be married.

“She will often stay in the relationship for a number of reasons but would prefer to be married if she could to acquire the same protections as married spouses might have.”

The Superior Court did apply the matter of choice in the spousal incompetency rule.

“I cannot agree that any objective of the spousal incompetence rules, or the Canada Evidence Act, was to protect autonomy and freedom of choice of unmarried couple,” Lofchik said.

Lofchik added leaving out common-law partners from the spousal incompetency rule perpetuates historic stereotypes implying those living outside of the traditional marriage structure are less “morally upright.”

“These views no longer accord with current social values or realities,” he said. “To include common-law spouses in the evidentiary protection provided by this area of the law does no more than to keep the law in step with the changed and changing social and moral fabric of Canada.”

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