Andy Hayher

Am I common law in Canada?

In the recent decision of Giesbrecht v. Schreiner  from the Saskatchewan Court of Queen’s Bench, the Court reviewed the indicia of what it means to be “Common Law” in Canada. In a lot of cases it will be very clear, however, there can be those instances where the Court needs to make a determination as to the quality and nature of a relationship. The case reviewed the factors from other jurisprudence that has been accepted as criteria for a court to consider when evaluating a Common Law relationship, namely:

  • Shelter;
  • Sexual and personal behavior;
  • Services;
  • Social;
  • Societal;
  • Economic support; and
  • Children.

These factors are often referred to as the Molodowich Factors (See: Molodowich v. Penttinen). The Justice in this case did a thorough review of these factors and the evidence and nature of the relationship. In the end the Justice held that this was a case where “real people with real problems lived together for a time and tried to work through their lives. The facts addressed herein are reflective of the human experience – imprecise, sometimes confused and far from perfect…”