Spam Smart Tip: Who’s Your Family?

by Dentons

Sometimes legislative or regulatory definitions create ambiguity rather than clarity. The definition of “family relationship” in the draft Industry Canada regulations regarding Canada’s Anti-Spam Legislation (CASL) is a case in point.

CASL is not yet in force. When it comes into force (no date set yet as of the date of this post), CASL will provide exemptions for a commercial electronic message (CEM) sent to a recipient with whom the sender has a “family relationship”. CASL typically requires express opt-in consent to CEMs and requires CEMs to contain prescribed information, including an unsubscribe mechanism. Those requirements won’t apply to CEMs to “family relationship” recipients.

What constitutes a “family relationship” for the purposes of CASL has been left to Industry Canada. The draft regulations did not disappoint for complexity, adopting, in part, definitions from Canada’s Income Tax Act. Does the complexity deprive the exemption of utility? Possibly. Take the question of whether your sister’s boyfriend will be able to send you his monthly business newsletter (without first getting your consent). If he wants to use the family relationship exemption, its availability seems to depend on where your sister and her boyfriend live in Canada, whether they are in a conjugal relationship, and how long they have lived together in that conjugal relationship! Or, in some cases, it might be relevant whether they have a child.

The draft Industry Canada regulations released in December 2012 contained the following definition:

“family relationship” means the relationship between individuals who are connected by

(i) a blood relationship, if one individual is the child or other descendant of the other individual, the parent or grandparent of the other individual, the brother or sister of the other individual or is of collateral descent from the other individual’s grandparent,

(ii) marriage, if one individual is married to the other individual or to an individual connected by a blood relationship to that other individual,

(iii) a common-law partnership, if one individual is in a common-law partnership with the other individual or with an individual who is connected by a blood relationship to that other individual, or

(iv) adoption, if one individual has been adopted, either legally or in fact, as the child of the other individual or as the child of an individual who is connected by a blood relationship to that other individual;

So, an electronic newsletter from your sister’s boyfriend could be exempt if you and your sister’s boyfriend are in a “family relationship”. You will be in a “family relationship” with your sister’s boyfriend, according to the draft regulations, if your sister and her boyfriend are in a common law partnership, since (taking the ordinary meaning of “sister”) you would be connected by a blood relationship to your sister.

The draft regulation assumes that there is something easily identifiable as a “common law partnership” in Canada. That’s an assumption worth examining.

Typically, whether an intimate or interdependent relationship is recognized as having marriage-like qualities depends on provincial legislation. When Canada’s Parliament wishes to impose a uniform definition, it does so through a defined term. For example, subsection 248(1) of the Income Tax Act defines a “common-law partner” as two people who are cohabiting in a conjugal relationship for a continuous period of at least one year. (To make matters complicated, there is another definition involving persons who have a child.)

Provinces also define types of de facto marriage relationships for specific purposes, typically family law support obligations. However, the term “common law partnership” is not a term of legal art.

In Ontario, for example, section 29 of the Family Law Act recognizes individuals as spouses of one another for certain family support obligations if they have lived in a conjugal continuously with one another for a period of not less than three years or are the natural or adoptive parents of a child and are living in a relationship of “some permanence”.

By contrast the period of conjugal relationship in subsection 3(1) of the British Columbia Family Law Act is two years.

By further contrast, the Alberta Interdependent Relationships Act recognizes interdependent relationships of three years or more but there is no necessity for the relationship to have a conjugal element.

In yet another variation, individuals may simply register their relationship as common law under the Manitoba Vital Statistics Act.

So what definition of common law partnership will be read into CASL? Family law where the couple lives? The commonly used federal legislative definition? Something else developed by the regulators or the courts?

The sky won’t fall, of course. There is also a “personal relationship” exemption. The proposed definition for this exemption is very broad. However, it does require direct, voluntary, two-way communications and enough factors to suggest that the relationship is personal. Relevant factors include whether there are shared interests, experiences, opinions and information “evidenced in the communications, the frequency of the communication, the length of time since the parties communicated and if the parties have met in person”. So, the exemptions may not quite overlap.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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