In Ontario, same-sex couples face unique challenges when making a dependant support claim under the Succession Law Reform Act (SLRA). While the law provides avenues for dependants to claim support from a deceased partner’s estate, same-sex couples—who may be less likely to enter into traditional marriage—must often rely on common-law status to establish their claim. Unlike married spouses, common-law partners do not have automatic property rights, making the process more complex.
To determine whether a couple was in a common-law relationship, Ontario courts apply the factors outlined in Molodowich v. Pettinen (1980), later endorsed by the Supreme Court of Canada in M. v. H. (1999). These factors assess the nature of the relationship and are critical in determining whether a surviving partner qualifies as a dependant. However, the criteria can create additional barriers for same-sex couples, particularly when considering the social and societal elements of their relationship.
The Molodowich Factors and Their Impact on Same-Sex Couples
The Molodowich decision sets out several factors to determine cohabitation, including:
- Shelter – Whether the couple lived together and shared accommodation.
- Sexual and Personal Behaviour – Whether they had a sexual relationship, maintained fidelity, and supported one another emotionally.
- Services – Division of domestic responsibilities like cooking, cleaning, and maintenance.
- Social – How they interacted within their communities and families.
- Societal – How their relationship was perceived and recognized by others.
- Support (Economic) – Their financial arrangements and whether they shared expenses or property.
- Children – Their involvement with children, if applicable.
While all these factors are relevant, the social and societal components present particular difficulties for same-sex couples. Courts consider whether partners held themselves out as a couple to friends, family, and the community. For many same-sex couples, especially those who have faced discrimination or feared for their safety, keeping their relationship private was not a matter of invalidity but of necessity.
The Social and Societal Disadvantage
The expectation that a couple must openly present themselves as partners to qualify as dependants creates an unfair burden for same-sex couples who may have concealed their relationship due to social stigma, workplace discrimination, or familial rejection. Historically, LGBTQ+ individuals have faced significant barriers to acceptance, and many have had to hide their relationships to protect themselves from harm.
For instance, a same-sex couple who lived together for decades but never disclosed their relationship to their families or employer could find their dependant support claim weakened by the very steps they took for self-preservation. Courts might question whether they were truly partners if they were not publicly recognized as such, despite their private commitment and interdependence.
Moving Towards a More Inclusive Approach
Ontario’s legal system has made strides toward recognizing same-sex relationships, but cases like these highlight the need for greater sensitivity when applying legal tests developed in a predominantly heterosexual framework. The Molodowich factors should be assessed with an understanding that not all couples have the same freedom to publicly disclose their relationship.
Conclusion
The dependant support claim process in Ontario can be challenging for any common-law couple, but same-sex partners face additional hurdles due to societal biases embedded within legal tests. While the Molodowich factors provide a useful framework, courts must apply them with an understanding of the unique difficulties LGBTQ+ individuals may face in publicly disclosing their relationships. A fairer approach would recognize that love and commitment exist beyond public perception and ensure that same-sex partners are not unfairly denied support due to outdated societal expectations.