TN 7 (08-18)

PR 03130.070 Canada

 

A. PR 16-043 Validity of Common-Law Relationship under the law of Ontario, Canada - Life and Death cases

DATE December 14, 2015

1. SYLLABUS

The claimant and NH allege that they have been in a common-law relationship in Ontario, Canada since April XX, 1997. Under the law of Ontario, a member of a common-law relationship does not have spousal rights of intestate inheritance from the other member. Accordingly, the agency would not deem the claimant and NH as having married based on a common-law relationship. As a result, the agency cannot entitle the claimant to spouse’s benefits on the record of the NH.

2. OPINION

 

Issue

M~ (claimant) applied for spouse’s benefits on the earnings record of L~, the insured number holder (NH). You have asked if the claimant is entitled to Title II spouse’s benefits on the NH’s record based on a marriage-like relationship (common-law relationship) with the NH. The couple has been domiciled continuously in Ontario, Canada, through the date of application for spouse’s benefits.

Short Answer

No, the claimant is not entitled to Title II spouse’s benefits. Although Ontario, Canada, recognizes common-law relationships between opposite and same-sex couples, this type of relationship does not allow a member of the relationship to have the “same status” as a spouse of the other member, with respect to the taking of property, if one member were to die without a will. Therefore, the agency cannot deem the couple as married for Title II benefit purposes based on their common-law relationship.

Factual Background

The claimant and the NH have lived together since April XX, 1997, in Ontario, Canada. The claimant applied for husband’s benefits on the NH’s record on February XX, 2014. The claimant submitted evidence that he had a spousal-type relationship with the NH, that they are engaged, but have not had a ceremonial marriage.

Analysis

a. Federal Law

To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant must show, among other things that he or she is the “husband” or “wife” of an insured NH. See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of a NH who is domiciled outside the United States. First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R.

§ 404.345.

Here, the NH and claimant allege that they have a common-law relationship, not a ceremonial or common-law marriage. Therefore, we do not have to determine whether a valid marriage exists. Instead, we must examine whether the claimant can be deemed to be the insured’s husband in accordance with the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345. Therefore, we must determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property under the law applied by the District of Columbia. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Therefore the inheritance law of the NH’s domicile, Ontario, Canada, applies.

b. The Claimant Does Not Have the Same Status as a Spouse of the NH under the Intestacy Law of Ontario. . . We note that our discussion of the law of Ontario, Canada is based in part on an opinion we received from the Library of Congress. Based on the Common-Law Relationship

The claimant and NH allege that they have been in a common-law marriage relationship since April XX, 1997. In Ontario, the Succession Law Reform Act (Reform Act) establishes the rules for intestate succession, or how a deceased person’s property is to be disposed of if the person did not draft a will.[2]

 

Unmarried partners, or those couples without a valid marriage license,[3] including those in a common-law relationship, are excluded from the definition of spouse under section 1 of the Reform Act.[4] Spouses are defined under the Reform Act as two persons who are married to each other, or “have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Reform Act.”[5] Therefore the Law recognizes the rights of same-sex married couples to inherit from their deceased spouse’s property. However, common-law partners, including those in a same-sex relationship, do not have an “automatic” statutory right to inherit from the estate of their partner. Although common-law spouses can make a claim for financial support as dependents by bringing an action against the estate,[6] they do not inherit as a spouse would, if the other spouse died without a will.

Thus, under the law of Ontario, a member of a common-law relationship does not have spousal rights of intestate inheritance from the other member. Accordingly, the agency would not deem the claimant and NH as having married based on a common-law relationship. As a result, the agency cannot entitle the claimant to spouse’s benefits on the record of the NH.

Conclusion

Under the law of Ontario, a member of a common-law relationship does not have spousal rights of intestate inheritance from the other member. Accordingly, the agency cannot deem the couple as married. Thus the agency cannot entitle the claimant to spouse’s benefits on the record of the NH.

B. PR 16-006 D~’s Entitlement to Spouse’s Insurance Benefits Based on Her Relationship with K~ — Involving the Law of Manitoba, Canada

DATE: October 8, 2015

1. Syllabus

The Act provides that a claimant will be deemed to be the spouse of an insured domiciled outside the U.S. if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the insured with respect to the taking of such property. In this case, the NH resides in Manitoba, Canada. Manitoba’s Intestate Succession Act provides for equal treatment of legally married spouses and common-law partners. The claimant has the same status as a spouse of the NH for purposes of intestate inheritance, and qualifies as the NH’s spouse on that basis.

2. Opinion

Issue

D~ (claimant) applied for spouse’s insurance benefits on the earnings record of K~, the insured number holder (NH). The claimant alleges they have lived together in a common law relationship in Manitoba, Canada, since August 1990. Is the claimant the NH’s spouse for purposes of determining her entitlement to spouse’s insurance benefits under title II of the Social Security Act?

Short Answer

Yes. The claimant has the same status as a legally married spouse of the NH for purposes of intestate inheritance, and qualifies as the NH’s spouse on that basis.

Factual Background

The claimant, a female, and the NH, a male, allege that they have lived together continuously in a common law relationship in Manitoba, Canada since August 1990.

The claimant and the NH submitted documentary evidence supporting the existence of a relationship between them. The documents show that the claimant and the NH received mail, addressed to them jointly, at the same address. They also show that the claimant and the NH filed joint tax returns, had a joint bank account, purchased a home together, and took out homeowner’s insurance jointly. A pension application completed by the claimant lists her marital status to the NH as “common-law,” and benefits were made payable to the NH upon the claimant’s death.

Statements submitted by the claimant and the NH indicate that they began living together “in a husband and wife relationship” in August 1990. Responding to a question asking if they had an understanding as to their relationship when they began living together, both the claimant and the NH stated “to live together as husband and wife common law,” and they represented that this understanding had not changed. Regarding how long they planned to live together, both the claimant and the NH stated “as long as possible . . . til death do us part.” In addition, both the claimant and the NH stated that they introduced the other to relatives, friends, neighbors, business acquaintances, and others, as “my partner,” “common law wife,” “common law husband,” “wife,” or “husband.” A statement completed by the NH’s son likewise states that the claimant and the NH referred to each other as husband and wife “always, everywhere.”

Discussion[7]

To be entitled to spouse’s insurance benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “spouse” of an insured. See Act § 202(f)(b), (c). As pertinent here, the Act provides that a claimant will be deemed to be the spouse of an insured domiciled outside the U.S. if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a spouse of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH is domiciled in Manitoba, Canada. Accordingly, to determine whether the claimant has the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Manitoba, Canada.

Manitoba’s Intestate Succession Act governs intestacy rights in Manitoba. See Intestate Succession Act, C.C. S.M. c. 185, http://web2.gov.mb.ca/laws/statutes/ccsm/i085e.php (last visited Oct. 8, 2015). The Act provides for equal treatment of legally married spouses and “common-law partners.” See id. §§ 2(1)-3(4). The Act defines a “common law partner” of an intestate as:

(a) a person who, with the intestate, registered a common-law relationship under section 13.1 of The Vital Statistics Act, or

(b) subject to subsection 11(2), a person who, not being married to the intestate, cohabited with him or her in a conjugal relationship, commencing either before or after the coming into force of this definition,

(i) for a period of at least three years, or

(ii) for a period of at least one year and they are together the parents of a child.

See id. § 1(1). Although the Act does not define the phrase “cohabited with him or her in a conjugal relationship,” courts interpreting this phrase have held that it incorporates the common law factors set out in Molodowich v. Penttinen (1980), 17 R.F.L. 5th 352 (Ont. S.C.J.), available at http://www.canlii.org/en/on/onsc/doc/1980/1980canlii1537/1980canlii1537.html (last visited Oct. 8, 2015), for determining whether an individual qualifies as a common law partner. The Molodowich factors include:

(1) Shelter: (a) Did the parties live under the same roof? (b) What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?

(2) Sexual and Personal Behavior: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity? (c) What were their feelings towards each other? (d) Did they communicate on a personal level? (e) Did they eat meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?

(3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping, (d) Household maintenance, (e) Any other domestic services?

(4) Social: (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?

(5) Societal: What was the attitude and conduct of the community towards each of them and as a couple?

(6) Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) Children: What was the attitude and conduct of the parties concerning children?

Molodowich, 17 R.F.L. 5th 352.

In this case, the claimant and the NH submitted documentary evidence showing that they received mail, addressed to them jointly, at the same address; filed joint tax returns; had a joint bank account; and purchased a home together, taking out homeowner’s insurance jointly. A pension application completed by the claimant lists her marital status to the NH as “common-law,” and benefits were made payable to the NH upon the claimant’s death. Statements submitted by the claimant and the NH indicate that they began living together “in a husband and wife relationship” in August 1990, understood themselves “to live together as husband and wife common law,” and expected their relationship to last “as long as possible . . . til death do us part.” Both the claimant and the NH stated that they introduced the other to relatives, friends, neighbors, business acquaintances, and others, as “my partner,” “common law wife,” “common law husband,” “wife,” or “husband.” A statement completed by the NH’s son likewise states that the claimant and the NH referred to each other as husband and wife “always, everywhere.” Based on these facts, it appears that the claimant qualifies as the NH’s common law partner under Manitoba’s Intestate Succession Act, and she would therefore have the same status as a legally married spouse of the NH with regard to the taking of the NH’s intestate property.

Conclusion

The claimant has the same status as a spouse of the NH for purposes of intestate inheritance, and qualifies as the NH’s spouse on that basis.

C. PR 15-198 - A Marriage-Like Relationship in British Columbia, Canada

Date: September 18, 2015

1. Syllabus

In British Colombia, Canada, couples in marriage-like-relationships for longer than two years can be considered to be in a common-law relationship. These marriage-like-relationships have the same status as spouse for intestate inheritance. Since the claimant is in a marriage-like-relationship with the number holder, the agency can deem the claimant entitled for Title II spouse’s benefits.

2. Opinion

QUESTION PRESENTED

Whether a couple residing in British Columbia, Canada, can satisfy the relationship requirement for purposes of spouse’s benefits based on a marriage-like relationship?

SHORT ANSWER

Under the law of British Columbia, a partner of a NH in a “marriage-like relationship” for longer than two years could have the “same status” as a spouse of the NH, for intestate inheritance purposes. Therefore, if the agency is satisfied that the evidence presented shows that a couple has lived in a marriage-like relationship for longer than two years, the agency can deem a couple as married for social security purposes.

SUMMARY OF EVIDENCE

The claimant, D~, filed for spouse’s benefits on the record of the NH, J~. As part of the claim, the claimant and the NH each completed a Statement of Marital Relationship. According to the claimant and the NH, they were in a marriage-like relationship since June 1992. They lived together in British Columbia, Canada since 1992. They never married, but they considered themselves in a “common law relationship.” On the claimant’s and NH’s separate Statements of Marital Relationship, each allege that they have a joint bank account, a shared mortgage, and filed joint tax-returns.[8] In addition, two brothers of the couple submitted statements saying they considered the couple married since 1992.

ANALYSIS

I. Social Security Law

To be entitled to spouse’s benefits under the Social Security Act (Act), a claimant must show, among other things, that he or she is the “husband” or “wife” of an insured NH.[9] See 42 U.S.C. §§ 402(b), (c), 416(a)(1); 20 C.F.R. § 404.330. As pertinent here, the Act provides two methods for a claimant to show that he or she is the husband or wife of an insured who is domiciled outside the United States. First, a claimant is the husband or wife of such insured if, among other things, the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he or she applied for benefits. See 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he or she applied for benefits, he or she will be deemed to be the insured’s husband or wife if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he or she would have the “same status” as a husband or wife of the insured with respect to the taking of such property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Here, the NH and claimant allege that they have a common-law relationship, not a ceremonial of common-law marriage. Therefore, we do not have to determine whether a valid marriage exists. Instead, we must examine whether the claimant can be deemed to be the insured’s wife in accordance with the Act. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Validity of Relationship Under the Law of the District of Columbia

Because the NH resided in British Columbia, Canada, at the time the claimant applied for benefits, we apply District of Columbia law to determine whether the claimant may be considered (deemed) to be the NH’s wife. SSA will deem the claimant to be the NH’s wife, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widower of the NH with respect to the taking of such property, if the NH were to die. See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345. Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). As previously noted, the claimant and the NH lived together in British Columbia, Canada. Accordingly, to determine whether this relationship would allow the claimant to have the requisite status as a spouse with respect to inheritance of the NH’s intestate property, we apply the law of British Columbia, Canada.[10]

British Columbia’s Estate Administration Act, and the subsequent Wills, Estates, and Succession Act, which came into force on March 31, 2014, provide the rules for intestate succession.[11] The Estate Administration Act’s definition of spouse included “common law spouse,” which meant either:

(a) A person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

(b) a person who has lived and cohabitated with another person in a marriage-like relationship, for a period of at least two years immediately before the person’s death.

Estate Administration Act, S.B.C. 1996, c. 122, pt. 1, available at

http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-122/104764/rsbc-1996-c-122.html#Part_1_General_498. The Wills, Estates and Succession Act does not refer to “common law spouse,” and instead states, “2 persons are spouses of each other for purposes of this Act if they were both alive immediately before a relevant time and (a) they were married to each other, or (b) they had lived with each other in a marriage-like relationship for at least 2 years.” Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at

http://www.bclaws.ca/civix/document/id/complete/statreg/09013_01#section2.

The expression “marriage-like relationship” is found in a number of British Columbia’s statutes that deal with the rights and obligations of unmarried couples. British Columbia’s Court of Appeal has held that the expression should be interpreted the same across statutes in “all cases where it is used to describe the status of two persons who have chosen to live together in a certain way.” Austin v. Goerz (2007) 74 B.C.L.R. 4th 39, para. 32 (Can. B.C. C.A.), available at https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca586/2007bcca586.html?searchUrlHash=AAAAAQA0bWFycmlhZ2UtbGlrZSByZWxhdGlvbnNoaXAgY29tbW9uIGxhdyBHb3N0bGluIFRha2FjcwAAAAAB.

Thus it appears that under the law of British Columbia, a partner of a NH in a “marriage-like relationship” would have the “same status” as a widower of the NH with respect to the inheritance of the NH’s intestate personal property. See 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

The legal test for determining whether a particular relationship is “marriage-like” is whether it was the parties’ subjective intention to be in a “marriage-like relationship.” Gostlin v. Kergin (1986), 3 B.C.L.R. 2d 264, page 5 (Can. B.C. C.A.), available at https://www.canlii.org/en/bc/bcca/doc/1986/1986canlii164/1986canlii164.html. In Gostlin, the Court stated:

If each partner had been asked, at any time during the relevant period of more than two years, whether, if their partner were to be suddenly disabled for life, would they consider themselves committed to life-long financial and moral support of that partner, and the answer of both of them would have been “Yes”, then they are living together as husband and wife. If the answer would have been “No”, then they may be living together, but not as husband and wife.

Id. at 5. However, the Court notes that sometimes ascertaining intention can prove difficult in particular circumstances, in which case objective factors can be relied upon:

Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation? Did they share their property? Did they share their finances and their bank accounts? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

Id. at 6.

The Court enunciated additional factors indicating a “marriage-like relationship” in Takacs v. Gallo (1998), 48 B.C.L.R. 3d 265 (Can. B.C. C.A.), available at http://www.canlii.org/en/bc/bcca/doc/1998/1998canlii6429/1998canlii6429.html. In that case, the Court held that courts must focus first on the intentions of the parties to live in a marriage-like relationship, using objective factors to divine those subjective intentions. Id. para. 53. The Court noted that although the parties may not explicitly acknowledge that a marriage-like relationship exists, “conduct speaks louder than words.” Id. para. 40.

Objective factors that may be relevant in determining the parties’ intentions are seldom determinative in and of themselves; many people who live together, and meet many of these objective criteria, do not actually intend or enter the kind of psychological and emotional union generally associated with marriage. Id. para. 55. Therefore, courts must recognize the uniqueness of each relationship and apply a flexible approach when considering the various objective criteria provided in the authorities. J.J.G. v. K.M.A. (2009), 71 R.F.L 6th 349, para. 37 (Can. B.C. S.C.), available at https://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc1056/2009bcsc1056.html.

II. The Claimant’s Application

The claimant and the NH stated that they had a marriage-like relationship that lasted for much longer than the two-year period required under the law. They lived together since 1992 and held themselves out as husband and wife. The claimant and NH each stated that they comingled finances, jointly owned real property, and filed taxes together. However, it does not appear that SSA requested any documents to support these allegations. In addition, a brother of the claimant, and a brother of the NH each submitted a Statement Regarding Marriage. Both brothers stated that they considered the couple husband and wife. In addition, M~, stated that the couple co-owns their homes and share finances. He also stated that he sees the couple three or four times a year, at family gatherings and holidays. M2~ stated that he always referred to claimant as his sister-in-law. Therefore, if the agency is satisfied that the statements of the claimant, the NH and the brothers are sufficient (without additional supporting documentation such as bank, mortgage or tax records), we think this evidence could show that this couple had a subjective intention to be in a marriage-like relationship and therefore the agency can find the couple in a common-law relationship under the law British Columbia. Accordingly, the couple could be deemed married under the Act, and the claimant would be considered the NH’s wife for benefit purposes.

CONCLUSION

Under the laws of British Columbia, Canada, a couple in a marriage-like relationship would be considered in a common-law relationship and thus could inherit as spouses for purposes of intestate succession. Thus, the agency could deem such couple as married for social security purposes under title II of the Act.

D. PR 15-166 C~’s Entitlement to Husband’s Insurance Benefits Based on His Relationship with A~ (Applying District of Columbia and Saskatchewan Law)

DATE: November 13, 2015

1. Syllabus

Saskatchewan, Canada recognizes common law marriages when solemnized by a formal ceremony. C~ and A~ did not have their relationship solemnized by a formal ceremony. However, under Saskatchewan’s Intestate Succession Act of 1996 C~ has the same inheritance rights as a married spouse. Therefore, SSA can deem C~ is to be A~ husband for entitlement to Title II husband’s insurance benefits.

2. Issue

C~ (claimant) applied for husband’s insurance benefits on the earnings record of A~, the insured number holder (NH). The claimant and the NH allege that they entered into a common law spousal relationship in Saskatchewan, Canada. Both were aware that the claimant was married to another woman at the beginning of their relationship. After that marriage was terminated by divorce, they allege that they continued to live together as common law spouses. However, they never participated in a ceremony solemnizing their relationship as a marriage. Is the claimant the NH’s husband for purposes of determining his entitlement to husband’s insurance benefits under title II of the Social Security Act?

3. Short Answer

Yes. Although the claimant’s relationship with the NH would not be recognized as a valid marriage under Saskatchewan law, the claimant has the same status as a husband of the NH under Saskatchewan intestacy law and should be deemed to be her husband on that basis.

4. Factual Background

The clamant and the NH allege that they have lived together in a common law relationship in Saskatchewan, Canada since June 2003. At the time they began living together, both parties were aware that the claimant had separated from but was still married to another woman, M~.

The claimant and the NH executed a written “Interspousal Contract” on August XX, 2004. The preamble of the Interspousal Contract states that the claimant and the NH “have lived in a common law spousal relationship since approximately June 2003,” and that they “may enter into a marriage relationship in the future.”

The claimant’s marriage to M~ was terminated by divorce on September XX, 2005. Thereafter, the claimant and the NH allege that they continued to live together in a common law relationship. However, they acknowledge that they never participated in any ceremony solemnizing their relationship as a marriage.

On July XX, 2008, the claimant applied for husband’s insurance benefits on the NH’s earnings record. In support of the claimant’s application, the claimant and the NH submitted SSA-754 (“Statement of Marital Relationship”) forms on August XX, 2008. In the forms, they indicated that they have “liv[ed] together in a husband and wife relationship” in Saskatchewan, Canada from June 2003 to present. With respect to how long they understood they would live together, the claimant stated it was their understanding they would “remain together forever.” The NH stated “it is our plans to remain together as long as we both shall live.” They also stated that they believed that living together provided them with the same legal rights as married individuals. Both explained that “as per the Canadian laws, after 1 year together, you have the same legal rights as a legally married couple.” They also stated that they introduced each other to relatives, friends, neighbors, and business acquaintances as “my partner or spouse.”

The claimant and the NH also submitted business records and other documentary evidence in support of the claimant’s application for benefits. Credit card statements were mailed to the claimant and the NH at the same address. Bank account statements show that they held a joint account. The claimant’s 2007 tax return identified his marital status as “living common-law” and his “common-law partner” as the NH. In tax forms dated 2006 through 2008, the NH identified her marital status as “living common-law” and the claimant as her “spouse.” In connection with a pension claim with the Saskatchewan Financial Services Commission, the claimant signed a document affirming that he was the NH’s “spouse” on January XX, 2005. In an application for retirement benefits dated May XX, 2005, submitted to the Saskatchewan Healthcare Employees’ Pension Plan, the NH stated that the claimant was her “spouse.” In health insurance documents dated October 2004, the NH identified the claimant as her “spouse.”

The file also contains witness statements. C1~, the claimant’s sister, stated that the claimant and the NH have lived together since June 2003, that she has heard them refer to each other has husband and wife, that they have stated that they are married, and that she meets them six times per year. P~, the NH’s sister, also stated that they have lived together, “sharing the same bedroom,” since June 2003. P~ said they she meets them at least once per year and speaks frequently with them by telephone.

5. Discussion

To be entitled to husband’s insurance benefits under the Social Security Act (Act), a claimant must show, among other things, that he is the “husband” of an insured. See Act § 202(c)(1). As pertinent here, the Act provides two methods for a claimant to show that he is the husband of an insured who is domiciled outside the United States. First, a claimant is the husband of such insured if the courts of the District of Columbia would find that the claimant was validly married to the insured at the time he applied for benefits. See Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345. Second, even if a claimant was not validly married to such insured at the time he applied for benefits, he will be deemed to be the insured’s husband if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he would have the “same status” as a husband of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

a. The Claimant Is Not Validly Married To The NH Under Saskatchewan Law. We obtained an opinion from the Law Library of Congress regarding Saskatchewan marriage law. The opinion’s discussion of Saskatchewan law is consistent with the analysis in this memorandum.

Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into. See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946). Here, the claimant and the NH allege that they have lived together in a spousal relationship in Saskatchewan, Canada and that, under Saskatchewan law, they have the same rights as legally married individuals. Accordingly, to determine whether the claimant was validly married to the NH for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under Saskatchewan law.

Saskatchewan law recognizes as valid a marriage entered into in compliance with the provincial marriage statute. See S.S. 1995, ch. M-4.1, as amended by S.S. 2004, ch. 66; and SS. 2009, ch. 4. Saskatchewan also appears to recognize as valid a common law marriage, if certain procedural requirements are met. See Regina v. Cote, [1972] 1 W.W.R. 737.[13] To be valid, however, both types of marriage must be solemnized by a formal ceremony.[14] See S.S. 1995, ch. M-4.1, s. 31; Cote,1 W.W.R. 737, 20; see also Regina v. Martin, [2009] 5 W.W.R. 16; Regina v. Rombough, [2006] 2006 A.B.P.C. 261, 9; Casimel v. Ins. Corp. of British Columbia, [1993] 82 B.C.L.R. (2d) 387, 33.

In this case, the claimant and the NH acknowledge that their relationship was never solemnized by a formal ceremony. Their relationship, therefore, is not a valid marriage under Saskatchewan law. Accordingly, the claimant cannot qualify as the NH’s husband for Social Security purposes on the basis of a valid marriage.

b. The Claimant Has The Same Status As A Husband Of The NH Under Saskatchewan Intestacy Law

Even if the claimant is not validly married to NH, he will be deemed to be her husband if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, he has the “same status” as a husband of the NH with respect to the taking of such property. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile. Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)). Here, the NH is domiciled in Saskatchewan, Canada. Accordingly, to determine whether Carter has the requisite status with respect to inheritance of the NH’s intestate property, we apply Saskatchewan law.

In Saskatchewan, inheritance of intestate property is governed by the Intestate Succession Act of 1996. See Intestate Succession Act, 1996, S.S., 1996, ch. I-13.1, as amended by S.S. 1999, ch. 5 and S.S. 2001, ch. 51 (collectively, the ISA). The ISA defines the term “spouse” to include individuals who “cohabited with the intestate as spouses,” as well as married spouses, as follows:

  1. 1. 

    the legally married spouse of the intestate; or

if the intestate did not have a spouse within the meaning of clause (1) or had a spouse within the meaning of clause (1) to whom section 20[15] applies, a person who:

cohabited with the intestate as spouses continuously for a period of not less than two years; and

at the time of the intestate’s death was continuing to cohabit with the intestate or had ceased to cohabit with the intestate within the 24 months before the intestate’s death.

S.S., 1996, ch. I-13.1, s. 2; S.S., 2001, ch. 51, s. 6 (italics added). Thus, under the ISA, a non-married individual who “cohabited with the intestate as spouses” may have the same inheritance rights as a married spouse.

Although the ISA does not define the phrase “cohabited with the intestate as spouses,” courts interpreting this phrase have held that it incorporates common law factors used to determine whether the parties were in a “common law relationship.” See, e.g., Morin v. Leikeim, [2009] 2009 Sk. C. LEXIS 24; Yakiwchuk v. Oaks, [2003] 2003 Sk. C. LEXIS 783. The two most frequently applied sets of factors used to determine the existence of a “common law relationship” were set out in Molodowich v. Penttinen, [1980] 17 R.F.L.2d 376, and Tanouye v. Tanouye, [1993] 117 Sask. R. 196. The factors in Molodowich include:

(1) Shelter:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available accommodation?

(2) Sexual and Personal Behavior:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity?

(c) What were their feelings towards each other?

(d) Did they communicate on a personal level?

(e) Did they eat meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

(3) Services: What was the conduct and habit of the parties in relation to:

(a) Preparation of meals,

(b) Washing and mending clothes,

(c) Shopping,

(d) Household maintenance, (e) Any other domestic services?

(4) Social:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties?

(5) Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

(6) Support (economic):

(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) Children:

What was the attitude and conduct of the parties concerning children?

Busse v. Gadd, [2009] S.J. No. 151, 13, citing Romanchuk v. Robin, [2003] 232 Sask. R. 198, 17. In Tanouye, the Saskatchewan Court of Queen’s Bench summarized the factors to be considered in determining the existence of a common law relationship as follows:

The authorities seem to indicate that a common law relationship or marriage requires perhaps not all but at least a majority of the following characteristics: economic interdependence including an intention to support; a commitment to the relationship, express or implied, for at least an extended period of time; sharing of a common principal residence; a common desire to make a home together and to share responsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and a sexual relationship. As well, it appears that, superimposed on the relationship, there should be the general recognition of family, friends, and perhaps to some extent the larger community, that the particular man and woman appear as a “couple,” i.e. a family unit.

Busse v. Gadd, [2009] S.J. No. 151, 13, citing Romanchuk v. Robin, [2003] 232 Sask. R. 198, 17. Courts applying both tests have held that no one factor is determinative and that additional factors may be relevant. See, e.g., Yakiwchuk, supra, 2003 Sk. C. LEXIS 783, 14-15.

In this case, the claimant and the NH expressed in writing their mutual intent to enter into a permanent, marriage-like relationship with each other in August 2004. In addition to this expression of their intent, they have lived together continuously for many years, from June 2003 to present. Credit card records show that they have lived together at the same address. Bank account statements show that they have held a joint account. Witness statements show that they have visited family members together and have introduced each other as spouses. Based on these facts, it appears that the claimant qualifies as a non-married individual entitled to inherit a husband’s share of the NH’s intestate property under Saskatchewan law.

The fact that the claimant and the NH knew that the claimant was legally married to another person at the time they began living together does not affect the claimant’s inheritance rights under Saskatchewan law. See Winik v. Wilson Estate, [1999] 181 Sask. R. 111, 21 (stating that “[t]he formation of a common law relationship is not hindered by the existence of a subsisting marriage.”). Thus, the claimant’s prior marriage to M~ did not preclude his entry into a common law relationship with the NH. Accordingly, even though the claimant is not validly married to the NH, the claimant should be deemed to be the NH’s husband on the basis that he would inherit a spouse’s share of her personal property if she died intestate. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

6. Conclusion

The claimant should be deemed to be the NH’s husband for purposes of determining his entitlement to husband’s insurance benefits. The Act provides two methods for establishing a claimant’s status as an insured’s husband. First, a claimant is an insured’s husband if he was validly married to the insured at the time he applied for benefits. Second, even if a claimant was not validly married to an insured, he will be deemed to be the insured’s husband if he would inherit a husband’s share of the insured’s personal property if she died intestate. Although the claimant’s relationship with the NH would not be recognized as a valid marriage under Saskatchewan law, the claimant has the same status as a husband of the NH under Saskatchewan intestacy law and should be deemed to be her husband on that basis.

E. PR 15-130 Validity of Common-Law Marriage under the law of Québec, Canada — Life and Death cases

1. Syllabus

Quebec, Canada does not recognize common law marriage. Although Quebec allows this type of relationship, called a “de facto union” or “conjoints de fait”, it does not allow the claimant the same status as a widow of the number holder (NH) under the intestacy law of Quebec. Therefore, the agency cannot entitle the claimant to Title II widow’s insurance benefits based on a common-law marriage.

2. Opinion

QUESTION PRESENTED

M~ (the claimant) applied for widow’s insurance benefits on the earnings record of T~, the deceased insured number holder (the NH).  You have asked if the claimant is entitled to Title II widow’s benefits based on a common-law marriage with the NH.

OPINION

No, the claimant is not entitled to Title II widow’s benefits based on a common-law marriage to the NH.  Québec, Canada, does not recognize common-law marriage, i.e., non-ceremonial marriage.  In addition, the agency cannot deem the couple as married for Title II benefit purposes based on some type of non-marital legal relationship.  Québec recognizes civil unions; however the claimant does not allege that she entered into a civil union.  Although the law of Québec does allow for two people living together to be in a relationship called a “de facto union” or “conjoints de fait,” this type of relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec. Therefore, the agency cannot find a deemed marriage based on the time period during which the claimant and NH lived together before their ceremonial marriage.

BACKGROUND

The claimant and the NH lived together from January 1990, until the NH’s death on October 1998, in Québec.  The claimant submitted evidence that she had a spousal-type relationship with the NH and that they began living together in 1990 in Québec. The couple continued to live together in San Francisco, California, and in Maui, Hawaii.  The couple married in Hawaii on February 1998.  They moved back to Québec, where the NH died on October 1998. 

ANALYSIS [16]

Generally, an individual is entitled to widow’s or widower’s benefits if he or she (1) is the insured’s widow or widower and the marital relationship lasted at least nine months before the insured died; (2) files an application; (3) is at least 60 years old; (4) is not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount; and (5) is not currently married.  Sections 206(e), (f), 216(c), (g) of the Act; 20 C.F.R. § 404.335.

Here, because the NH resided in Canada at the time he died, we apply District of Columbia law to determine whether they were validly married.  Section 216(h)(1)(A)(i) of the Act; 20 C.F.R.

§ 404.345.  Under the law of the District of Columbia, the validity of a marriage is determined by the law of the jurisdiction where the marriage was entered into.  See McConnell v. McConnell, 99 F. Supp. 493, 494 (D.D.C. 1951); Carr v. Varr, 82 F. Supp. 398 (D.D.C. 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (D.D.C. 1946).  The only exception is when the marriage is in violation of strong public policy of the District of Columbia.  Hitchens v. Hitchens, 47 F. Supp. 73, 74 (D.D.C. 1942).

Québec Does Not Recognize Common-law Marriage

The claimant entered into a valid ceremonial marriage with the NH in Hawaii on February XX, 1998.  However, the NH died on October 1998.  Under the law of the District of Columbia, the claimant would be recognized as the insured’s widow.  However, under the Act, the marriage did not last at least nine months before the insured died as required under sections 216(c), 216(g) of the Act; 20 C.F.R. § 404.335.  Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH, based on their ceremonial marriage.  

The claimant alleges that she was in a common-law marriage with the NH based on the eight years they lived together.  However, Québec does not recognize common-law marriage.  Further, California and Hawaii also do not recognize common-law marriage.  See POMS GN 00305.075B.  Thus, claimant is not entitled to Title II widow’s benefits on the record of the NH, based on a common-law marriage. 

The Claimant Does Not Have the Same Status as a Wife of the NH Under the Intestacy Law of Québec Based on a Legal Non-Marital Relationship

If the claimant cannot be entitled to widow’s benefits based on a marriage to the NH, the agency may deem the claimant to have been married to the NH, if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, the claimant would have the “same status” as a widow of the NH with respect to the taking of such property, if the NH were to die.  See § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.  Under District of Columbia law, intestate inheritance rights are determined by the law of the decedent’s domicile.  Javier v. Comm’r of Soc. Sec., 407 F.3d 1244, 1247 (D.D.C. 2005) (citing In re Gray’s Estate, 168 F. Supp. 124 (D.D.C. 1958)).  As previously noted, the NH died domiciled in Québec.  Accordingly, to determine whether the claimant would have the requisite status as a spouse with respect to inheritance of the NH’s intestate property, we apply the law of Québec. 

Québec recognizes marriages, civil unions,[[17] 2] and de facto unions (conjoints de fait ),[[18] 3] all of which are open to couples who are in an opposite or same-sex relationship.  De facto unions exist when two people live together as a couple without being married or in a civil union.[19]   Here, the claimant does not allege (or present evidence) that she was in a civil union with the NH.  However, the claimant alleges that she and the NH had a common-law marriage because they lived together from January 1990, until the NH’s death on October XX, 1998.  As explained above, Québec law does not recognize common-law marriage.  Instead, Québec law would recognize the relationship between the claimant and NH as a de facto union (conjoints de fait). According to Justice Québec, the website of Québec’s Department of Justice:

Québec lawmakers, respecting the freedom of choice of couples living in a de facto union, have deliberately chosen not to extend to de facto couples the same rights and responsibilities that married or civil union couples have under the Civil Code of Québec, regardless of the number of years of cohabitation.[20]

Thus, under the Civil Code of Québec, a member of a de facto union does not have spousal rights of intestate inheritance from the other member.  Accordingly, the agency would not deem the claimant and NH as having married based on a de facto union.  As a result, the agency cannot entitle the claimant to widow’s benefits on the record of the NH. 

CONCLUSION

Common law marriage is not recognized in Québec.  Under the law of Québec, the relationship that existed between the claimant and NH prior to their marriage would be recognized as a de facto union. But under the Civil Code of Québec, a member of a de facto union does not have spousal rights of intestate inheritance from the other member.  Accordingly, the agency would not deem a couple who had been in a de facto union as married. Thus the agency cannot entitle the claimant to widow’s benefits on the record of the NH. 


Footnotes:

[1]

. . . We note that our discussion of the law of Ontario, Canada is based in part on an opinion we received from the Library of Congress.

[2]

. . . Succession Law Reform Act, R.S.O. 1990, c. S.26, pt. II, http://www.e-laws.gov.on.ca/html/statutes/english/ elaws_ statutes_90s26_e.htm.

[3]

. . . Marriage Act, R.S.O. 1990, c. M.3, http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m03_e. htm. Section 4 of the Marriage Act stipulates that “[n]o marriage may be solemnized except under the authority of a license issued in accordance with this Act or the publication of banns.”

[4]

. . . Succession Law Reform Act § 1(1).

[5]

. . . Id.

[6]

. . . Id. § 58(1).

[7]

. We note that our discussion of the law of Manitoba, Canada is based in part on an opinion we received from the Library of Congress.

[8]

. No copies of documents supporting these allegations were presented, however it does not appear that the agency requested these documents.

[9]

. To be eligible for spousal benefits, the claimant must also show that he or she: (1) has been married to the insured individual for at least one year, shares a natural child with the insured, or is entitled to certain benefits in the month before the marriage; (2) has filed an application for spousal benefits; (3) has attained aged 62 or has in his or her care a child entitled to child’s benefits; and (4) is either not entitled to old-age or disability benefits, or is entitled to such benefits based on a primary insurance amount which is less than one-half of the spouse’s primary insurance amount. See 42 U.S.C. § 402(b)(c); 20 C.F.R. § 404.330. As we have not been asked to provide an opinion on whether claimant meets these additional requirements, our opinion will focus on whether the claimant and the NH are validly married or can be deemed married.

[10]

. This legal opinion is based in part on an opinion we received from the Library of Congress regarding the law in British Columbia, Canada.

[11]

. The Wills, Estates and Succession Act was intended to provide greater certainty for individuals who put their last wishes into writing and simplify the process for those responsible for distributing an estate, but did not meaningfully change the definition of “spouse.” British Columbia, Ministry of Justice, available at http://www.ag.gov.bc.ca/legislation/wills-estates-succession-act/index.htm; Compare Estate Administration Act, S.B.C. 1996, c. 122, pt. 1 available at http://www.canlii.org/en/bc/laws/stat/rsbc-1996?c-122/104764/rsbc-1996?c-122.html#Part_1_General_498, and Wills, Estates and Succession Act, S.B.C. 2009, c. 13, pt. 2, available at http://bclaws.ca/civix/document/id/complete/statreg/09013_01#section 2/.

[12]

. We obtained an opinion from the Law Library of Congress regarding Saskatchewan marriage law. The opinion’s discussion of Saskatchewan law is consistent with the analysis in this memorandum.

[13]

. In Cote, the court stated that “[c]are must … be used to distinguish such ‘common-law marriage,’ if in fact valid, from what is today generally referred to as common-law relationship, which latter can never be regarded as a marriage.” Cote, 1 W.W.R. 737, 16. Although not all decisions exhibit the care urged by Cote, more recent cases tend to reserve the term “marriage” only for those relationships celebrated as marriages in compliance with the applicable marriage statute, and refer to common law living arrangements as “relationships.” Compare Tanouye v. Tanouye, [1993] 117 Sask. R. 196 (announcing a test to determine the existence of “common law marriage or relationships”) with Romanchuk v. Robin, [2003] 232 Sask. R. 198 (referring to Tanouye’s test as applying to common law “relationships” only). Notably, the claimant and the NH also appear to recognize a distinction between common law relationships and common law marriages. The Interspousal Contract states that they “have lived in a common law spousal relationship since approximately June 2003” and “may enter into a marriage relationship in the future.” Interspousal Contract, 1 (emphasis added).

[14]

. In this regard, we note that the requirements of common law marriage in Saskatchewan differ from those typically applied in other jurisdictions. In most jurisdictions, including most states in the United States, a ceremony is not a required element of a common law marriage. See generally Bryan A. Garner, Black’s Law Dictionary 1060 (9th Ed. 2009).

[15]

. 1. Section 20 of the ISA states that: “Where the spouse of an intestate has left the intestate and is cohabiting with another person in a spousal relationship at the time of the intestate’s death, the spouse takes no part in the intestate’s estate.”

[16]

. We note that our discussion of the law of Quebéc, Canada is based in part on an opinion we received from the Library of Congress.

[17]

. Civil Unions, JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/publications/generale/union-civ-a.htm (last

updated May 4, 2009).   

[18]

. De Facto Spouses, JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/publications/generale/union-a.htm (last

updated Sept. 10, 2013).

[19]

. Id. 

[20]

. Id. 


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PR 03130.070 - Canada - 02/19/2016
Batch run: 08/17/2018
Rev:02/19/2016