This case concerned whether or not a common-law spouse is entitled to any part of their spouse’s estate when that spouse dies without a will.

LEAF was granted leave to intervene before the Nova Scotia Court of Appeal. Unfortunately, Bill Young ultimately filed a notice of discontinuance on the appeal, as he was unable to cover the costs associated with the appeal process.

Facts

Judith Jackson died intestate (without a will) in August 2017. At the time of her death, Ms. Jackson lived with Bill Young, her common-law spouse of more than a decade. Ms. Jackson was the sole owner of the property where the couple resided.

Ms. Jackson’s two adult daughters became administrators of their mother’s estate and started proceedings to remove Mr. Young from the property. Mr. Young then sought to inherit Ms. Jackson’s property as a “spouse” under s. 4 of the Nova Scotia’s Intestate Succession Act (the “ISA”). He also argued that the exclusion of common-law spouses from the ISA violates his equality rights guaranteed under s. 15 of the Charter.

The trial judge dismissed Mr. Young’s claims. He found that common-law spouses are excluded from inheriting under the ISA. He held that this exclusion infringes s. 15 of the Charter, but that the infringement is justified under s. 1, which is used to justify a limitation on a person’s Charter right. The judge concluded that the significant impact on the equality rights of unmarried spouses was proportionate to the legislation’s objective, which he determined was to preserve choice and individual autonomy in how couples conduct their affairs.

Arguments

LEAF had planned to offer the Court a contextual and gender-informed analysis under s. 1 of the Charter by highlighting the gendered implication of limiting the application of the ISA only to married spouses. The frequency of common-law partnerships is increasing, and intestacy (the situation where people die without a will) affects traditionally marginalized or equality-seeking groups, including low-income and racialized people. Women’s inability to access support and family property upon the death of a spouse contributes to the feminization of poverty.

The history and text of the ISA suggest that legislators historically did not view common-law partnerships as legitimate family structures. LEAF would have argued that the rationale for limiting the ISA to married spouses is rooted in stereotypes and prejudice and cannot be justified under the s. 1 analysis.

Furthermore, LEAF would have argued that the trial judge inappropriately relied on the s. 1 of the Charter analysis in Quebec v A, a Supreme Court of Canada decision. Because this case arose from a unique context within the Civil Code of Quebec, the Supreme Court’s analysis should not have been transplanted to the current case.

Outcome

On November 17, 2020, Bill Young filed a notice of discontinuance on the matter of Jackson Estate v. Young, as he was unable to cover the costs associated with the appeal process.

The discontinuance of this appeal means that the lower court decision, upholding the limit in the province’s intestate succession legislation to married spouses, will go unchallenged.  It unfortunately underscores the very real barriers to access to justice that exist for those with limited means. 

LEAF is grateful to Kelly McMillan and Nasha Nijhawan, counsel in this case.

LEAF’s interventions are all guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The case committee members for this intervention were (in alphabetical order): Clare Burns, Jodi Lazare, Robert Leckey and Martha McCarthy. LEAF gratefully acknowledges their contributions to the leave application.

The LEAF staff who contributed to the case are Megan Stephens, Rosel Kim and Nicole Biros-Bolton.