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Separation Advice: Common law spouses are covered by spousal incompetence rules

Section 4 of the Canada Evidence Act provides that the spouse of the accused is not a competent witness for the Crown.   Until recently, this provision and related common law protections for the accused’s spouse have been used to grant protection only to married spouses. 

In R v Hall the constitutionality of excluding common law spouses from this protection was considered. Lofchik J. of the Superior Court of Justice held that the common law relating to the spousal incompetence rule and section 4 of the Canada Evidence Act discriminate against common law partners on the ground of marital status.   

Consequently, the common law and this provision are contrary to section 15(1) of the Canadian Charter of Rights and Freedoms  Lofchik J. found that this discrimination could not be justified under section 1 of the Charter as being a reasonable limit on the accused’s equality right that is demonstrably justified in a free and democratic society. The remedy stated by Lofchik J. is to read section 4 of the Canada Evidence Act to include common law spouses where there is reference to “husband” and “wife” and to apply the common law provisions as including common law partners in any definition of “husband and wife” or “husband” and “wife” or “spouse”.

If you’re in a martial or common law relationship and are seeking separation advice, talk to one of our family law experts. We will provide you with a complimentary consultation. Call us today.