Can common law spouses be excluded from the definition of a spouse under the Intestate Succession Act?

The parties agree that, on the basis of Québec v. A, the exclusion of common law spouses from the definition of “spouse” under the Intestate Succession Act violates s. 15(1) of the Charter. The Act denies unmarried spouses the right to inherit from a spouse who dies intestate – a right that is available to married spouses. The law therefore creates a distinction based on the analogous ground of marital status. That distinction perpetuates the effects of an historical disadvantage rooted in prejudice. It is also based on the false stereotype that common law spouses have chosen not to assume the rights and obligations of an intestate succession regime that applies to married spouses by default. Having found a violation of s. 15(1), it is necessary to determine whether that violation is justified under s. 1 of the Charter.