Living Apart Together Relationships Require Planning and Advice

A recent Globe and Mail article reviewed the lives of several couples who chose to live apart in long term relationships. Full disclosure, I was one of the individuals interviewed for this article.

Though this is my own personal situation, I also have had several clients with the same living arrangements, including couples who purchased a second home so that they could live apart but still continue their relationship. In these and other non-traditional living situations, getting legal advice and making a plan becomes more important.

Ontario law defines "spouse" as someone that you are legally married to or have cohabited with for a specified period of time. Couples who choose to live apart will not fall into the definitions of "spouse" in Ontario law, and thus won't have the same protections that married spouses, or even that cohabiting spouse do in the areas of family law, wills and estates (and possibly other areas of law that are beyond the scope of my knowledge). Your long term partner who does not live with you would be viewed as no more than a friend in the eyes of the law if they were to die or become incapable.

Here are two areas of law to think about:

Wills and Estates

Couples who are not married and are not cohabiting will not be defined as spouses under the laws that apply when someone dies without a will in Ontario.

The surviving partner in this situation would have no priority to request to administer the deceased person's estate and would only be able to do so with consent of anyone else so entitled, or with the discretion of the court. The individual would also not be entitled to inherit anything from their partner's estate.

While it is always important to have a will to outline your wishes, these relationships outside of the "standard" coupling make it necessary. Examine what you want to happen when you die, who will administer your estate, where your assets will go and how your partner fits in to that plan. If either partner has children, there will be additional concerns.

This is not a situation for a DIY will kit. A lawyer can review your situation and concerns, discuss the law that applies, and help you make a will that works for your unique needs.

Powers of Attorney

Without an executed Power of Attorney for Property, you will not have any ability to manage your partner's finances or property if they become ill or incapable. In fact, if they don't have a Power of Attorney, then no one will have authority to do so. The only way anyone will be able to access their bank accounts or pay their bills or do their taxes is by making a costly court application.

When it comes to making health care decisions if your partner were temporarily or permanently incapable, you are also not considered a spouse under the laws that apply here. If your partner had not executed a Power of Attorney for Personal Care appointing you to make decisions for them, you would have no authority to participate in the decision making about your partner's health and living arrangements. Other family members, such as parents or siblings, would have the ability to make these decisions with no obligation to consult or advise you.

Non-traditional relationships of any kind require proper legal advice to ensure you and your loved ones are protected. If you would like to schedule a 15 minute call to discuss your situation, you can do so here.

- Michele