TN 6 (09-15)

PR 05630.070 Canada

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

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 16, 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 17, 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 30, 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 19, 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 6, 2005. In an application for retirement benefits dated May 1, 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 LawWe 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.[2] To be valid, however, both types of marriage must be solemnized by a formal ceremony.[3] 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

    •  

  2. 2. 

    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[4] applies, a person who:

    •  

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

    •  

      b. 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.

 

Todd Lewellen

Office of the General Counsel, Office of Program Law

B. PR 15-128 Validity of Common-Law Relationship . As explained in this opinion, in Québec, this type of relationship is termed a “de facto union” or “conjoints de fait.” under the law of Québec, Canada — Death Case — REPLY

DATE: May 13, 2015

1. SYLLABUS

The claimant entered into a valid ceremonial marriage with the NH in Hawaii in February 1998.  The NH died on October 24, 1998 in Québec, Canada. Because the NH resided in Canada at the time of his death, we apply District of Columbia law to determine whether they were validly married. Under the law of the District of Columbia, the claimant would be recognized as the NH’s widow. However, under the Act, the marital relationship did not last at least nine months before the NH died as required under the Act. Therefore, the claimant is not entitled to Title II widow’s benefits on the record of the NH. In addition, the agency cannot deem the couple as married for Title II benefit purposes, as their relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec, Canada.

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). The claimant submitted evidence that she had a spousal-type relationship with the NH and that they began living together in 1990 in Québec, Canada. The couple lived in San Francisco, California, and in Maui, Hawaii. In Hawaii, the couple married on February 17, 1998. They moved back to Québec, Canada, where the NH died on October 24, 1998. You have asked if the claimant is entitled to Title II widow’s benefits based on her relationship with the NH.

OPINION

No, the claimant is not entitled to Title II widow’s benefits based on her relationship with the NH. Although the claimant married the NH on February 17, 1998, the marriage did not last the requisite nine months required by the Social Security Act (Act). [6] Section 216(c) of the Act; 20 C.F.R. § 404.335. In addition, the agency cannot deem the couple as married for Title II benefit purposes, as their relationship does not allow the claimant the same status as a widow of the NH under the intestacy law of Québec, Canada.

BACKGROUND

The claimant and the NH lived together from January 1990, until the NH’s death on October 24, 1998, in Québec, Canada. You requested a legal opinion regarding whether the claimant is entitled to Title II widow’s benefits on the record of the NH, based on this relationship.

ANALYSIS[7]

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).

The Claimant’s Ceremonial Marriage to the NH did not Last at Least Nine Months

The claimant entered into a valid ceremonial marriage with the NH in Hawaii, on February 17, 1998. However, the NH died on October 24, 1998. Under the law of the District of Columbia, the claimant would be recognized as the insured’s widow. However, under the Act, the marital relationship 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 Does Not Have the Same Status as a Wife of the NH Under the Intestacy Law of Québec, Canada

If the claimant cannot be entitled to widow’s benefits based on a marriage to the NH, the agency will deem the couple to have been married, 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, Canada. Accordingly, to determine whether the claimant would have the requisite status with respect to inheritance of the NH’s intestate property, we apply the law of Québec.

Québec recognizes marriages, civil unions, [8] and de facto unions (conjoints de fait), [9] 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. [10] 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. [11]

Here, the claimant does not allege that she was in a civil union with the NH. Instead, the claimant and the NH lived together from January 1990, until the NH’s death on October 24, 1998. Under the laws of Québec, this relationship would be defined as a de facto union (conjoints de fait). However, 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 in a de facto union as married.

CONCLUSION

The claimant does not have the same status as a wife of the NH under the law of Québec. Thus the agency cannot deem the couple married for Title II purposes.

C. PR 14-047 Widow’s Benefit Eligibility Based on Record of Common-Law Partner in New Brunswick, Canada

DATE: January 14, 2014

1. SYLLABUS

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. To determine whether claimant was validly married to the NH for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under New Brunswick law. As pertinent here, the Act provides two methods for a claimant to show that she is the widow of an insured who was domiciled outside the United States. First, a claimant is the widow 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 died.   Second, even if a claimant was not validly married to the insured at the time he died, she will be deemed to be his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a widow of the insured with respect to the taking of such property. Claimant fails to satisfy either requirement.

The Province of New Brunswick recognizes common-law relationships for certain purposes, but does not consider a common-law couple to be validly married because the union was never solemnized. In this case, claimant does not allege that her relationship with NH was solemnized by a marriage ceremony.  Under the laws of New Brunswick, Canada, the couple was not validly married because there was no solemnized marriage ceremony. We believe that the claimant should not be deemed NH's widow for purposes of determining her entitlement to widow’s insurance benefits.

2. OPINION

I. Question Presented

The claimant, S~, applied for widow’s insurance benefits on the earnings record of P~, the deceased insured number holder. S~ submitted evidence showing that she had a spousal-type relationship with P~ and that they lived together in New Brunswick, Canada from 1967 until P~’s death in June 2012. The question presented is whether the agency should consider S~ to be P~’s “widow” in determining her eligibility for survivors benefits under Title II of the Social Security Act (the Act).

CONCLUSION

Based on our review of the facts of this case and our research of the relevant law, we have determined that it is unlikely that a District of Columbia court would find a valid common law marriage established in its jurisdiction.

II. Short Answer

No. Under the laws of New Brunswick, Canada, a common-law relationship is not a valid marriage. Further, when a common-law partner dies without a will, the surviving partner does not have the same property rights as a legal widow or widower under New Brunswick intestacy laws. For those reasons, the agency should not consider S~ to be P~’s widow for Title II survivor’s benefits eligibility purposes.

 III. Background On August 31, 2012, S~ filed for widow’s benefits based on an alleged common-law marriage to the deceased number holder, P~.  Both were previously married to others, and their divorces reportedly became final sometime between 1967 and 1970. The couple shared the same address in New Brunswick, Canada, purchased property jointly, and shared joint bank accounts. S~ and P~ signed a Statutory Declaration of Common-Law Union for the purposes of the Canadian Pension Plan. In that Declaration, the couple alleged that they had been living together as husband and wife in Canada since 1967. S~ is named as P~’ “spouse” and “next of kin” in the “proof of death certificate” issued by Fundy Funeral Home, New Brunswick, Canada.

IV. Applicable Law

To be entitled to widow’s insurance benefits under the Act, a claimant must show, among other things, that she is the “widow” of the insured. See Act § 202(e)(1), 42 U.S.C. § 402(e)(1). As pertinent here, the Act provides two methods for a claimant to show that she is the widow of an insured who was domiciled outside the United States.  First, a claimant is the widow 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 died. See Act § 216(h)(1)(A)(i), 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 the insured at the time he died, she will be deemed to be his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she would have the same status as a widow of the insured with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(h)(1)(A)(ii); 20 C.F.R. § 404.345.

IV. Analysis

A. S~ was not validly married to P~ under New Brunswick law.

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 (Dist. Court, Dist. of Columbia 1951); Carr v. Varr, 82 F. Supp. 398 (Dist. Court, Dist. of Columbia 1949); Gerardi v. Gerardi, 69 F. Supp. 296 (Dist. Court, Dist. of Columbia 1946). Accordingly, to determine whether S~ was validly married to P~ for Social Security purposes, we must determine whether their relationship constitutes a valid marriage under New Brunswick law. The Canadian provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867. Constitution Act, 1867, 30 & 31 Vict., c. 3. Further, the Supreme Court of Canada ruled in January 2013 that the provinces held the authority to decide what rights should be given to common-law couples. Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII) (also known as “Eric” v “Lola”).

The Province of New Brunswick recognizes common-law relationships for certain purposes, but does not consider a common-law couple to be validly married because the union was never solemnized. Marriage Act, R.S.N.B. 2011, c. 188, s. 27, par. 1. See also Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law.

 Like validly married couples, common-law partners in New Brunswick are able to claim credits for tax purposes The Income Tax Act recognizes common-law partners for tax purposes. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). or file a claim for a portion of their partners’ pensions. Under the Pension Act, the surviving common-law partner of a member of the forces is entitled to a pension. Pension Act, R.S.C. 1985, c. P-6, s. 45, par. 2.1. Unlike validly married couples, common-law partners can be forced to testify against each other, are not responsible for the debts of their partners, cannot make health care decisions for their partners (unless they hold a power of attorney), and the children of such unions are considered illegitimate. Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law.  To be validly married under New Brunswick law, a couple must have their marriage solemnized in accordance with the Marriage Act. Marriage Act, R.S.N.B. 2011, c. 188, s. 27, par. 1.

In this case, S~ does not allege that her relationship with P~ was solemnized by a marriage ceremony.  While it appears that they were recognized as common-law partners by the Canadian Pension Plan, the rules governing that program are not applicable to this question. Similarly, the fact that S~ was named as P~’ deceased spouse and next of kin on the proof of death certificate issued by the funeral home has no bearing on whether the couple would be considered validly married under New Brunswick law.  Because there was no solemnized marriage ceremony, the couple was not validly married. Accordingly, S~ cannot qualify as P~’ widow for Social Security purposes on the basis of a valid marriage.

B. S~ does not have the same status as P~’ widow under New Brunswick intestacy law.

Even if S~ is not validly married to P~, she will still be deemed his widow if, under the law applied by the courts of the District of Columbia in determining the devolution of intestate personal property, she has the same status as his widow with respect to the taking of such property. See Act § 216(h)(1)(A)(ii), 42 U.S.C. § 416(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 (Dist. Court, Dist. of Columbia 2005) (citing In re G~’s Estate, 168 F. Supp. 124 (Dist. Court, Dist. of Columbia 1958)). Here, P~ was domiciled in New Brunswick, Canada. Accordingly, to determine whether S~ has the requisite status to inherit P~’ intestate property, we apply New Brunswick law. The Canadian provinces have exclusive jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867. Constitution Act, 1867, 30 & 31 Vict., c. 3.

In New Brunswick, the Devolution of Estates Act mandates how an estate is to be distributed when an individual dies intestate (without a will). The Act recognizes the entitlement of a legally married spouse – i.e., “widow” – but does not recognize entitlement of a common-law relationship partner. Devolution of Estates Act, R.S.N.B. 1973, c. D-9, s. 22. Although common-law partners have no property rights, they may still petition a court to order the partner’s estate to provide support under the Provisions for Dependents Act. Provision for Dependants Act, R.S.N.B. 1973, c P-22.3. Through such petition, the common-law partner may be awarded a portion of the deceased’s estate. Such an award would not, however, amount to a right to inherit the deceased partner’s intestate property. See also Public Legal Education and Information Service of New Brunswick, Living Common-Law: Rights and Responsibilities (March 2013), http://www.legal-info-legale.nb.ca/en/index.php?page=living_common-law. Because New Brunswick law will not entitle S~ to inherit P~’ property in the absence of a will, the agency should not deem S~ to be the insured’s widow under the Act. See Act § 216(h)(1)(A)(ii); 20 C.F.R. § 404.345.

CONCLUSION

For the above reasons, we conclude that a common law marriage under the law of the District of Columbia has not been established between the Number Holder and Shirley given the evidence you provided.

Donna L. Calvert
Regional Chief Counsel
By:________________________________
Elizabeth A. Corritore
Assistant Regional Counsel

D. PR 10-089 Analysis of Alleged Common Law Marriage in British Columbia for Purposes of SURCIC Benefit Application

DATE: April 28, 2005

1. SYLLABUS

In British Columbia, Canada, a common law marriage exists only when persons unable to comply with marriage laws, perhaps due to the extreme remoteness of their location, hold a ceremony of their own and do not have that marriage solemnized. By contrast, persons who live together for an extended period of time might be said to have a common law relationship or, in the words of the statute, a marriage-like relationship, but do not have a common law marriage.

However, under British Columbia law these unmarried cohabitants may not have a common law marriage, they may be common law spouses and be entitled to almost all rights enjoyed by married couples, including the right to inherit. In fact, the British Columbia Parliament has extended common law spouses all of the rights a married couple enjoys that are relevant to Social Security’s programs.

2. OPINION

QUESTION

You have asked whether a claimant who alleges to have been a common law spouse of a deceased number holder may be considered a widow or surviving spouse of a number holder for purposes of surviving spouse with child in care benefits (SURCIC).

SHORT ANSWER

Under British Columbia law and relevant court cases, the relationship between O~ and the number holder qualifies them to be considered common law spouses. As such, aside from any issues relating to O~’s failure to appeal the denial of her prior application and any issues relating to other aspects of O~ eligibility for benefits, O~ should be considered the surviving spouse of the number holder entitled to all of the rights a married couple enjoys relevant to Social Security’s programs

ANALYSIS

A. The Social Security Act and the POMS

As you noted, the Social Security Act provides that, when determining the marital status of a number holder who does not reside in a state, SSA will apply the law “the courts of the District of Columbia” would apply. See 42 U.S.C. § 416(h)(1)(A)(i); see also Program Operations Manual System (POMS) GN 00305.001 (“If the worker was domiciled in a jurisdiction not defined in the Act as a State, apply the law which the courts of the District of Columbia apply.”).[12]

O~’s attorney is incorrect that the statutory phrase refers to the law of the District of Columbia. Rather, the phrase has been interpreted to mean that the law of the foreign jurisdiction where the number holder is domiciled controls the decision, not the law of the District of Columbia itself. See, e.g. Gonzalez v. Hobby, 110 F.Supp. 893, 897 (D. Puerto Rico 1953). Thus, if a number holder was domiciled in British Columbia, Canada, then the law of that province should be applied to determine the relationship the number holder had with the claimant. In the present case, however, the result is the same.

B. British Columbia, Canada, Law on Common Law Marital Relationships

British Columbia continues to retain the distinction between a common law marriage and a common law relationship. See Analysis by Stephen Law Library of Congress, January 31, 2003, citing Nova Scotia (Attorney General) v. Walsh, [2002] S.C.C. 83. That is, a common law marriage exists only when persons unable to comply with marriage laws, perhaps due to the extreme remoteness of their location, hold a ceremony of their own and do not have that marriage solemnized. By contrast, persons who live together for an extended period of time might be said to have a common law relationship or, in the words of the statute, a marriage-like relationship, but do not have a common law marriage.

Statutory law in British Columbia defines “spouse” and “common law spouse” to include those who are living and cohabitating in a marriage-like relationship, including a marriage-like relationship between persons of the same gender. See Definition of Spouse Amendment Act, 2000, S.B.C. 2000, ch. 24 (2000) (Can.). Where a deceased person is involved, the Estate Administration Act now defines a “common law spouse” as “a person who has lived and cohabitated with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person’s death[.]” Id. at § 11. Additionally, “spouse” is defined to include “common law spouse.” See Definition of Spouse Amendment Act, 1999, S.B.C. 1999, ch. 29, § 5 (2000) (Can.). Both the 1999 and 2000 Definition of Spouse Amendment acts redefined the terms “spouse” and “common law spouse” across a large number of statutes in addition to the Estate Administration Act.

The elements of a “marriage-like relationship” have been set out by the British Columbia Court of Appeal (their highest provincial court). See B.K. v. T.C., 2002 B.C.S.C. 1537, paragraphs 58-62, citing Gostlin v. Kergin, [1986], 3 B.C.L.R.2d 264 (C.A.) at 267-268, et al. A marriage-like relationship is established if there is proof of the parties’ subjective intent to voluntarily embrace permanent support obligations. If the parties’ subjective intentions can be determined, then these are determinative of whether their relationship is “marriage-like.” Id. The singularly defining question is:

If each partner had been asked, at any time[,] . . . 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. If, however, the evidence of the relationship does not clearly establish the answer to this subjective question, the following “more objective indicators” are determinative:

  • shelter, (i.e. common or separate residences and sleeping arrangements),

  • sexual and personal behavior (from sexual relations and faithfulness expectations to mutual gift-giving and mutual help),

  • services (who did meals and household chores),

  • social (conduct of parties in relation to local community and each other’s family),

  • societal (community view of each and as a couple),

  • support/economic (financial and property ownership arrangements), and

  • children (parties’ attitude and conduct regarding children).

Id. Each of these objective factors may be entitled to more or less weight, depending on the circumstances of each case. Id.

Although unmarried cohabitants may not have a common law marriage, they may be common law spouses and be entitled to almost all rights enjoyed by married couples. In British Columbia this includes the right to inherit. In any case where the Parliament has not specifically extended a right to an unmarried couple, such as presumptive property division in Nova Scotia, or where the Parliament has created an exception to a right for unmarried couples, and where the Canadian Charter of Rights and Freedoms (their Constitution) does not mandate that right for the unmarried couple, the unmarried couple goes without the right that is enjoyed by a married couple. See Nova Scotia (Attorney General) v. Walsh, [2002] S.C.C. 83, 221 D.L.R. (4th) 1, 32 R.F.L. (5th) 81. For instance, common law spouses are specifically excepted from some laws governing matrimonial property division and pension entitlement in Nova Scotia. These exceptions were upheld by the Supreme Court of Canada. Id. In British Columbia, the Parliament has extended common law spouses all of the rights a married couple enjoys that are relevant to Social Security’s programs. See Definition of Spouse Amendment Act, 2000, S.B.C. 2000, ch. 24 (2000) (Can.).

O~ Application.

The child, O~ , is currently receiving survivor benefits on the account of her deceased father, Craig, based on a January 28, 2003, application. Her mother, Savina , a.k.a. Savina F~, applied for SURCIC benefits on February 6, 2003. That application was denied because it was determined that O~ had not been legally married to the number holder. O~ again applied for SURCIC benefits on February 24, 2005. She alleged being the common-law wife of the number holder pursuant to a relationship that began in June 1999. In a September 27, 2004, Order, the Supreme Court of British Columbia stated that the deceased number holder’s will did “not make adequate provision for the proper maintenance and support of his spouse, S~ also known as S~[.]” This order was entered after a hearing where both the estate and O~ were represented. Thus, there has been a judicial determination in a contested proceeding that O~ qualified as the number holder’s spouse. This is the only evidence of the existence of a marriage-like relationship from a potentially uninterested party.

In addition, several parties that might have an interest in the award of benefits to O~ provided evidence that supports her claim she and the number holder had a marriage-like relationship. O~ has declared, under penalty of perjury, the existence of several factors that are determinative of a marriage-like relationship (common law spouse): they considered themselves committed “to be life long partners[,]” the couple held themselves out as husband and wife, they had a common residence, and they bore a child together. The number holder’s father has declared, under penalty of perjury, that several conditions existed that could establish the existence of a marriage-like relationship: the couple was generally known as husband and wife, he considered them to be husband and wife, the number holder stated he wanted to spend his life with O~, they referred to themselves as husband and wife, and they maintained homes together. Finally, the number holder’s brother declared, under penalty of perjury, that several conditions existed that could establish the existence of a marriage-like relationship: he considered himself O~ brother-in-law, the couple was generally known as husband and wife, he considered them to be husband and wife, the number holder’s commitment to O~ “was much greater than most marriages[,]” the number holder stated he wanted to spend his life with O~, and they had a child and maintained a home together. O~ mother also declared the existence of similar conditions that could establish the existence of a marriage-like relationship.

It appears that these individuals lived and cohabitated in a marriage-like relationship, for the required two years prior to the number holder’s death, resided in British Columbia at the time of the number holder’s death, and they are to be considered common law spouses under British Columbia law, entitled to all of the rights a married couple enjoys relevant to Social Security’s programs.

Vikash Chhagan
Acting Regional Chief Counsel

By _________
David R. Johnson

Assistant

 


Footnotes:

[1]

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.

[2]

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).

[3]

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).

[4]

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.”

[5]

. As explained in this opinion, in Québec, this type of relationship is termed a “de facto union” or “conjoints de fait.”

[6]

. As you did not ask about the nine-month duration requirement, we assume you have examined this requirement and the exceptions prior to sending us this request.

[7]

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

[8]

. Civil Unions, JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/publications/generale/union-civ-a.htm (last updated May 4, 2009).

[9]

. De Facto Spouses, JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/publications/generale/union-a.htm (last updated Sept. 10, 2013).

[10]

. Id.

[11]

. Id.

[12]

. As you also noted, POMS GN 00307.255 compiles information about recognition of common law marriages in other countries and includes British Columbia. At the same time, POMS GN 00305.060 reviews requirements for common law marriages within the United States in general. See also Memorandum from Regional Chief Counsel, San Francisco,


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1505630070
PR 05630.070 - Canada - 09/03/2015
Batch run: 04/13/2016
Rev:09/03/2015