Spouses are:
- Same-sex or opposite-sex persons who are related through marriage or through civil union and cohabit
- Persons, of the opposite or same sex, who cohabit and are the father and mother of the same CHILD; except when they demonstrate that they cohabit on a temporary basis, which is the result of exceptional circumstances related to a serious health problem of either spouse or of one of their children. The child does not necessarily need to be dependent, he or she must however be alive and not have been given up for adoption. Therefore, when the adult mother and father of the same child begin or resume cohabitation in a TEMPORARY ASSISTANCE SITUATION or family mutual aid related to a serious health problem of either spouse or of one SITUATION or family mutual aid related to a serious health problem of either spouse or of one of their children, we consider that there is no cohabitation, provided it only takes place during a TEMORARY period. In addition, when parents of the same child are considered spouses, the officer must check whether either of the spouses is eligible for the 66/72 benefit. When parents of the same child live together and one of them is eligible for the 66/72 benefit, the child will be considered the dependent of the eligible parent. For more information, please refer to the section “Dependent child.”
- Persons of full age, of the opposite or same sex, who ARE LIVING TOGETHER as a couple, when their situation is the subject of an evaluation and who at some point have COHABITED for a period of at least 12 CONSECUTIVE MONTHS.
The concept of married life is based on three criteria:
- cohabitation,
- mutual support,
- common repute.
CIVIL UNION
On June 7, 2002, the National Assembly of Quebec passed the Act instituting civil unions and establishing new rules of filiation. This Act came into force on June 24, 2002.
This Act allows new spouses to enter into a contract establishing a civil union regime, governed by the same rules as those applicable to matrimonial regimes and marriage contracts.
It applies to spouses, of the opposite or same sex, who are 18 years of age and over.
RECOGNIZING SPOUSES OF THE SAME SEX
On June 16, 1999, the Government of Quebec passed an omnibus bill amending various provisions in legislation and regulations that deal with the definition of the term common-law spouse so that a common-law relationship is recognized regardless of a person’s sex. However, the MSS did not implement this legislation until October 1, 1999.
Same-sex couples have the legal obligation to declare their situation as of October 1, 1999 when filing a new application and upon the annual reassessment.
However, all recipients were formally notified of this new legislative provision through an information leaflet enclosed with the June 1, 2000 cheque.
The Band Council and/or Tribal Council therefore considers that, as a matter of fact, they had the obligation to notify that they were spouses as and from the earliest of the following dates:
- June 1, 2000
- prior to this date, without exceeding October 1, 1999, when administration questioned them on the subject.
When a claim occurs, it will start from the month following one of these dates.
Also, Quebec recognizes same-sex marriage since March 19, 2004, when the Quebec Court of Appeal rendered a decision in the matter “La ligue catholique pour les droits de l’homme. c. Michael Hendricks et René Leboeuf.” Such an union, whether civil or religious (if the officiating authority has the capacity to marry spouses for civil purposes), is recognized even if it took place outside the province of Quebec (example: Ontario or British Columbia) or any other country.
MARITAL LIFE
Proof of married life between two unmarried persons or not civilly married must include facts showing that the TYPE of COHABITATION AND MUTUAL ASSISTANCE that exists between HUSBAND AND WIFE actually exists between the parties. This may also include as supplementary evidence facts establishing that the parties are recognized as spouses by those with whom they associate.
Married life may be established by a number of factors involving certain repetitive and habitual actions by persons, which the officer must evaluate. No test is applicable to every case, since each case stands on its own merits. However, the previous record of the spouses may be especially relevant.
Knowing how long persons have known each other, whether they associated with each other for a long time before living together, how long they have lived together, whether they admit having previously lived together as a couple and if so, the circumstances in which they parted, all help in determining the existence of a situation of the type found among married couples. By its very nature the concept of married life is perhaps the one that makes the greatest demands on the judgment of officers, who have the task of defining it with discernment.
COHABITATION
COHABITATION is the situation of persons who live and reside together. It involves a certain duration, a certain permanence with the intent to establish their main residence under the same roof, at a same address. It is not necessary for cohabitation to be uninterrupted, provided that the residence is the main residence of both partners.
Cohabitation therefore does not exist when persons start or resume sharing the same lodgings in a TEMPORARY ASSISTANCE SITUATION (eg.: accommodation of a visitor, emergency situation or temporary relocation situation), provided that it remains TEMPORARY.
If married persons or persons related by civil marriage or the father and mother of the same child demonstrated that they cohabited temporarily and that specific circumstances subsequently led them to live together, they will be considered spouses as of the month they modified their project. There will be no claim for the previous months.
Under the same circumstances, if these persons who were not married, or civilly married, or the father and mother of the same child, decide at a given time to live together as husband and wife, calculation of the twelve-month period of cohabitation begins as of the day they started sharing the same lodgings, as is usually done.
However, when life as husband and wife is recognized, it is not possible during assistance to consider its interruption under the pretence that cohabitation is now only temporary.
CALCULATION OF THE PERIOD OF COHABITATION:
- may be calculated from age 16, even though there is no married life until the individuals are of full age;
- is calculated from the date marking the first anniversary of the beginning of cohabitation.
When one of the spouses must travel outside the community in order to work during the week, as in the case of a truck driver or travelling salesman, there is cohabitation if that person regularly returns to his or her spouse on holidays and at vacation time. The Act provides that there has not been any interruption in cohabitation simply because one of the spouses is absent, as happens because of work or travel when one of the spouses stops living with the other but keeps his or her principal place of residence at the latter's home. However, ordinary visits on a sporadic basis clearly cannot constitute cohabitation.
There is also no cohabitation when one of the alleged spouses lives in a completely separate dwelling, even if it is physically joined to the dwelling occupied by the other alleged spouse.
INDICATIONS of COHABITATION can be FOUND by consulting inter alia leases, rent receipts, invoices (bills for telephones, electricity, gas, oil and taxes), insurance contracts (life, fire and automobile) and contracts for the purchase of goods, and by checking the name(s) listed in the telephone directory or shown on census records where available.
A TEMPORARY ABSENCE by a spouse or separation of individuals which is not final, that is, where the surrounding circumstances suggest that it is not irrevocable or does not result from a complete break, will not interrupt the twelve‑month cohabitation period. In this connection the short duration of the absence (less than two months), the possibility of eventual return (personal effects left with the beneficiary, no change of address), continuation of common activities and exchange of services, continuing emotional ties and behaviour are all tests which may be used to determine whether an absence is temporary. However, we consider that cohabitation has ended, when the absence of either spouse is due to his or her incarceration or his/her obligation to remain in an establishment for his/her social reintegration for a period of three months and over.
MUTUAL SUPPORT
MUTUAL SUPPORT is based primarily on the concept of economic support and that of moral and emotional support. This concept applies regardless of the couple’s sexual orientation.
By way of illustration, the following facts suggest that there is mutual support between persons living together :
- The alleged spouses have SUPPORTED EACH OTHER when one has earlier been without financial resources;
- The alleged spouses have a joint BANK ACCOUNT or one of them has taken out a loan to pay the other's debts or repair the other's property;
- A beneficiary frequently uses the PROPERTY (credit cards, automobile and furniture) of his or her alleged spouse;
- One of the alleged spouses has acted as a NOMINEE or as a GUARANTOR in transactions involving the other spouse;
- There is a discrepancy between the beneficiary's income and expenditure;
- The alleged spouses have COMBINED their financial RESOURCES to operate the family unit and purchase goods for common use;
- One alleged spouse has made out a WILL in favour of the other or has appointed the other the beneficiary of his or her life insurance policy;
- One alleged spouse is living in the DWELLING or house of the other FREE OF CHARGE or paying very little rent;
- The alleged spouses are performing SERVICES for each other involving housekeeping, laundry, preparation of meals, child care and so on;
- The alleged spouse is helping to BRING UP the beneficiary's CHILDREN;
- The alleged spouses GO OUT TOGETHER, take vacations together and exchange gifts on various occasions (birthdays and holidays);
- The number of ROOMS IN THE DWELLING compared with the number of occupants suggests that none of the rooms is available for a boarder.
COMMON REPUTE
COMMON REPUTE means that the spouses are KNOWN TO LIVE TOGETHER by acquaintances and in particular their neighbours, relatives and friends.
Common repute may namely be determined by questioning the beneficiary on the facts that show him or her to be recognized by acquaintances and friends as part of a couple: for example, the beneficiary and the alleged spouse are invited out for the evening or for family or other activities as a couple; they are identified by their acquaintances as a couple.
However, in the case of same-sex couples, considering that homosexuality is not yet recognized socially in the same fashion, everywhere in Quebec, the officer or investigator MUST BE VERY TACTFUL when searching for testimonial evidence among the couple’s acquaintances (neighbours, parents, friends) of the beneficiary or his/her presumed spouse. Also, the officer may verify with banks, employers or insurance companies, the possibility that the person may have stated that this other person was his/her spouse.
HELPER-ASSISTED RELATIONSHIP
However, cohabitation and mutual support may occur in situations different from that of married life, among others, when two persons have functional limitations (severely or temporarily limited capacity). In which case, it would be advisable to analyse the situation and assess the preponderance of a helper-assisted relationship.
The following criteria should guide you in determining whether a functional limitation is at the basis of the mutual support two persons provide each other:
- one of either persons has a definite need of personal care and/or assistance and the alleged spouse provides the other with this support in whole or in part;
- functional limitations prevent this person from living alone;
- cohabitation with the alleged spouse enables this person to avoid placement in an institution or outside his/her home (eg: household chores, home maintenance, shopping, etc.).
The presence of these elements may lead to the conclusion that the cohabitation of these persons and the mutual support they provide each other is primarily aimed at responding to the necessity to meet the functional limitations of one or both at once.
These elements must occur from the beginning of the mutual aid relationship. The married life situation is not questioned with the occurrence of functional limitations, mutual support remains always that which spouses provide each other.
Persons related through marriage or through civil union who cohabit are always considered as spouses.
When former spouses (who are separated through divorce or through the dissolution of the civil union or common law spouses) resume cohabiting within a mutual aid relationship aimed at meeting functional limitations, their relationship will not be qualified as married life.
Cohabiting adults who are the father and mother of the same child are considered spouses unless they demonstrate that they cohabit on a temporary basis, as a result of a serious health problem of either spouse or one of their children. A medical certificate confirming the health condition, the duration and nature of care requiring mutual aid will be required. Each situation will be considered on the basis of the information provided by the recipient and the medical certificate. When the health problem affects one of the adults, autonomy must be significantly reduced to prove the necessity of mutual aid assistance or supervision.
Furthermore, when the serious health problem affects a child, the medical certificate and information provided by the recipient will demonstrate that it requires that both parents must cohabit.