I think it's a bit different in Canada because of our common-law marriages as a legal status for most things - taxes, benefits, child support, etc. So if someone uses husband or spouse I don't really care if they are legally married.
This is a surprisingly complicated issue that is widely misunderstood by Canadians.
First you need to understand what is meant by "common law" when used in legal writing. It's a somewhat ambiguous term. It can refer to a legal system where court rulings create precedent which are binding on lower court judges, but that is usually written as a "common law jurisdiction" or "common law system". It can also refer to body of decisions under such a system, but I prefer the term "case law" or "decisional law" for that.
The remaining use, and probably the most common use, of the term "common law" is to refer to the law in England as it existed around the time of American revolution. There's no exact date, but generally speaking, it refers to the period before English law was reformed by codifying many topics in statutes. This is the meaning of the term "common law" in the 7th amendment to the US constitution, which "preserves" the right to a jury at common law. The US supreme court has held that the effect of this amendment is to elevate the common law (meaning, the law as it existed in England historically) regarding juries to the status of a constitutional right. Notably, England itself no longer offers the same rights to a jury as it did at the time this amendment was adopted, but that is irrelevant since that is not what is meant by the term "common law" in this context.
You can see that "common law" can be a pretty confusing term with many different meanings -- certainly more confusing than "partner".
So which use of "common law" is being invoked in the phrase "common law marriage" to refer to an unmarried couple living together in a committed relationship in Canada? The answer is "none of them". A "common law marriage" as Canadians use the term is not a real legal concept. At common law (in the sense of historical English law), a marriage within the territory of the UK was created solely through a religious ceremony and later according to legislation that required formal documentation requirements. It was not the case in the common law of England that marriages could be created without a formal procedure (subject to a couple exotic exceptions).
To further muddy the waters, in some US states, it is possible to create a marriage without any formal procedure. This is actually very interesting from a legal history perspective. To understand this, you first need to understand a general principle of law in the USA which is that, unless modified by statute, the common law (as in historical English law) forms of the base of state law (except for Louisiana). So if something was the law "at common law" (meaning in historical English law), it remains the law in a US state, unless the state has a statute modifying the common law position, in which case the statute controls.
With that background in mind, we can consider the US Supreme Court case of
Meister v. Moore, 96 US 76 (1877), in which the Supreme Court (acting pursuant to diversity jurisdiction -- meaning it was considering state law) considered the validity of an alleged marriage that had been purportedly entered into without following the Michigan statute on marriage formalisation. The US Supreme Court held that the statute did not explicitly say that the procedures in the statute were the
only way to formalise a marriage, and therefore, if the marriage was legal at common law, it would also be legal for state law purposes. To quote the Court, "[n]o doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed." The Court then went on to find that at common law, no formal ceremony was required to create a marriage, and therefore, the marriage in that case could potentially be valid even though the statute had not been complied with.
Based on the above, you'll notice that the Court's finding here was based on an erroneous understanding of the common law. The Court believed -- without citing any authority other than a contemporary book chapter -- that at common law, marriage could be created without any formal procedure. At explained at great length in
chapter 2 of "The Misunderstood Contract Per Verba De Praesenti", by Rebecca Probert, this Court ruling was in error and the ability to create a marriage without formal procedures is, as a result, a "distinctive American concept" (page 83), not something that existed at common law. However, despite the premise being an error, it is still the law in some (but not all) US states. The term "common law marriage" is used to refer to marriages of this nature in the US states where this applies. These would not have been valid marriages at common law, but they are valid in the US states where this applies.
So where does this leave Canada? As in the US, the common law forms the base of law in Canada, except to the extent modified by statute. For example, in Alberta, the law on fraudulent transfers is actually still controlled by the common law, because the Alberta legislature has never passed any statute overruling the common law. Thus, cases on fraudulent transfers in Alberta often cite legislation and cases from 1677 and earlier.
In Canada, the "Solemnization of Marriage" is explicitly under exclusive provincial jurisdiction pursuant to s 92(12) of the
Constitution Act, 1867. That means that if a province did not explicitly abolish the common law on marriage solemnisation, then marriages that would have been valid at common law would be valid in the province. However, herein lies the key fact: unlike in the US, no major court in Canada ever fell into the error that the US Supreme Court made in
Meister. As a result, "common law marriage" in the American sense of a marriage created without a formal procedure,
has never been valid in Canada. This is still the case today.
So why do Canadians almost uniformly believe this concept exists even though it does not? I figure it is a combination of four things.
First, American television may lead Canadians to believe they are seeing law that applies in Canada.
Second, at common law (and continuing to the present day in every province), in an unmarried relationship, one partner could still recover damages from the other one in the case of a split up, under the legal theory of unjust enrichment. There are some similarities between the law of unjust enrichment and the law of division of maritial assets, but the law is emphatically not the same. In particular, the law of unjust enrichment does not presume a 50/50 split, but rather a split in proportion to the work invested into the relationship (such as raising children, keeping the home, etc.).
Third, most or all provinces have also enacted laws creating a statutory form of unmarried relationship (not a marriage) conveying certain rights that did not exist in the common law of unjust enrichment. In Alberta, these are called "adult interdependent relationships", but the term varies in other provinces. These relationships are controlled by a wholly separate body of law compared to marriages, although some of the principles are similar.
Fourth, the federal
Income Tax Act (and the Canada Revenue Agency) use the term "common-law partnership" to refer to a pure
tax concept relevant for computing income tax. This concept is relevant for tax purposes, but not for any other purposes. Just because somebody is a common-law partner for tax purposes does not convey any rights itself, although as a practical matter, they may have some rights under the other law discussed above.
This ended up being a very long post, but to summarise all of the above: "common law marriage", as in a marriage created without formal procedures, did not historically exist in the common law of England, but due to a mistake, it does exist in the law of some but not all US states. It never existed in Canada and still does not exist in Canada.
