Anaya Nolan
In Ontario, common-law couples do not have a matrimonial home and do not have the same rights as married couples. If you own the home, you can legally evict your partner, but this is not recommended as it may hurt your case and compromise your safety. If you are separating, it is important to create a separation agreement to outline how property will be divided, and to consult a lawyer to understand your rights.
| Characteristics | Values |
|---|---|
| Can a common-law partner kick the other out in Ontario? | If the common-law partner owns the house, they can legally kick the other out. However, it is not recommended as it will not be looked upon favourably in court. |
| What if the common-law partner is abusive? | If there is abuse in the relationship, it is not recommended to kick the other person out as it will compromise their safety. |
| What if the other partner is less financially stable? | If the common-law partner is less financially stable, it is not recommended to kick them out. |
| What if there are children involved? | The partner needs to give reasonable time to find alternative housing. |
| What if the common-law partner has lived in the house for a long time? | The longer a common-law partner has lived in the house, the more entitlement they have to the matrimonial property. |
| What if the common-law partner has contributed financially to the house? | Common-law partners can make claims for constructive trust, allowing them to share the value of the property even if they are not on the legal title. |
| What if there is no cohabitation agreement? | Common-law spouses generally have fewer legal rights than married spouses upon break-up. |
| What if the common-law partner calls the police? | The police will not be able to do anything other than try to provide assistance in the matter. |
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What You'll Learn
Common-law partners don't have a matrimonial home
In Ontario, common-law couples do not have a matrimonial home. This means that if a couple breaks up, the home belongs solely to the person who owns it, and they can legally evict their partner. However, it is important to note that the court may not look favourably upon this decision and it could negatively impact the owner's case. It is always recommended to seek independent legal advice from a family lawyer to understand your rights and options during a common-law separation.
During a common-law separation in Ontario, it is important to create a separation agreement. While the format will be similar to a traditional separation agreement, there will be differences in how assets are divided between the partners. It is recommended to get independent legal advice to ensure the agreement is fair and meets the criteria of contract law. This agreement can then be signed and filed with the court to make it legally binding.
In terms of property division, common-law partners in Ontario do not have the same rights as married couples. The property is typically divided based on who owns it, with each partner entitled to half the value of the property acquired during the relationship. This includes pensions, as outlined in the Family Property Act and the Pension Benefits Act.
It is worth noting that if there is a written agreement in place between the partners, it may impact how property is divided. Additionally, if the partners have registered their relationship or lived together for a specified period, provincial property laws such as the Family Property Act may apply, as outlined in the Common-Law Partners' Property and Related Amendments Act.
While common-law partners do not have a matrimonial home in the traditional sense, they may gain some entitlement to the property due to the length of their relationship and the amount of time they have lived together. This can be a complex issue, and it is always recommended to seek legal advice to understand your specific rights and options.
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Common-law spouses have fewer rights than married spouses
In Ontario, common-law spouses have fewer rights than married spouses. Common-law couples do not have a matrimonial home and are not considered tenants. This means that if one partner owns the home, they can evict the other partner, but it is not recommended as it will not be looked upon favourably by the court. The police will also not be able to do anything in this situation, other than to provide assistance.
Common-law spouses do not have equal rights to live in the family home, unless they are both owners. They do not have the automatic right to equalise their net family property acquired during their relationship. However, they can make claims for constructive trust, allowing them to share the value of the property, even if they are not on the legal title. This is based on the principle of unjust enrichment, which will be used to determine the distribution of assets.
Spousal support is a significant concern during a common-law separation. While common-law spouses have the same rights to spousal support as married couples, they must meet certain criteria, such as living together for three years or having an adopted child together. When separating, common-law couples can enter into a formal separation agreement, which can set out how property will be divided and how much spousal support will be paid. This agreement should be reviewed by a lawyer to ensure it is legally binding.
Overall, while common-law spouses in Ontario have some important rights, they generally have fewer legal rights than married spouses, particularly in terms of property ownership and rights to the matrimonial home.
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Common-law couples can get Family Law Restraining Orders
In Ontario, common-law couples do not have a matrimonial home, and common-law partners do not have equal rights to possess the home in the event of a separation. If the house you are living in with your partner is in your name, you can legally evict your partner, but this is not recommended, as it will not be looked upon favourably by the court and may harm your case.
If you are in a dangerous or abusive situation, you can seek a family law restraining order, which can include many different types of conditions, such as:
- Forbidding the spouse from being in contact with the applicant spouse and/or their children (except as permitted).
- Ordering the person to have no contact with the applicant's family members or friends.
- Requiring the restrained person to stay away from specific locations, such as the applicant's home, place of employment, or children's school.
- Preventing the restrained person from possessing any firearms or ammunition.
To obtain a restraining order, you must visit the Family Court in the municipality where you or the other person lives and file certain documents, including an application. If the situation is an emergency, you can bring a motion to get a restraining order immediately. It is important to remember that a restraining order is only valid in Ontario, as it is issued under the Ontario Family Law Act.
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Common-law spouses can claim constructive trust
In Ontario, common-law couples do not have a matrimonial home, and therefore do not have equal rights to possess it in the event of a separation. If the house you are living in with your partner is in their name, then it is solely theirs, and they can technically evict you. However, this is not recommended, as it will not be looked upon favourably by the court and may harm your case.
The Ontario Court of Appeal has addressed the question of when a common-law partner’s claim for a constructive trust interest in a home may be allowed. In one case, the woman brought a claim for a constructive trust interest in the home after the parties separated. Her claim was initially dismissed, but she appealed the dismissal, arguing that she had established unjust enrichment entitling her to half the increase in the equity of the home as a joint family venture. Specifically, she asserted that she was entitled to half the equity in the home based on her contributions during cohabitation, including paying half the monthly mortgage costs, utilities, and groceries, as well as cleaning the home and doing work in the garden.
Another example of a constructive trust claim is if one spouse dedicated time, money, and effort to renovate a home registered in the name of the other spouse, thus adding value. Upon separation, the non-titled spouse would not receive compensation or ownership interest in the home without a successful claim. An unjust enrichment claim requires an extensive and lengthy accounting of which party contributed what during the common-law relationship, as well as establishing the original intention of the parties.
To protect their financial interests, common-law spouses can implement a cohabitation agreement setting out their expectations regarding property division. Without such an agreement, common-law couples who separate may face lengthy and expensive court proceedings to determine whether a "joint family venture" exists and what the appropriate remedy may be.
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Common-law couples must create a separation agreement
In Ontario, common-law couples do not have a matrimonial home, and each partner is only entitled to what they brought into the relationship or acquired during it. This means that if the house you are living in is in your name, you have the legal right to evict your partner. However, it is not recommended to do so, as the court will not look kindly upon this action, especially if your partner is less financially stable than you.
To ensure that your rights are protected during a common-law separation in Ontario, it is important to create a separation agreement. This agreement will outline the rights and responsibilities of both parties after their separation. While you can draft your own separation agreement, it is advisable to seek independent legal advice and have a lawyer review it before signing. The lawyer will ensure that the agreement meets the criteria of contract law and is fair to both parties.
The separation agreement should address issues such as the division of property, spousal support, and child support and custody if there are children involved. Part 3 of the Family Law Act, which governs support payments, applies to common-law couples who have been living together for three years or more while in a relationship of some permanence or having an adopted child together. If your relationship meets these criteria, you may be entitled to spousal support or be required to pay your former partner.
Additionally, if your common-law partner has children from a previous relationship who have been living with you, you may be considered a parent to that child for the purposes of child support. Child support is calculated using the Child Support Guidelines, regardless of whether the claim is made under the Divorce Act or the Family Law Act. It is important to note that spousal support for common-law couples is calculated in the same way as for married couples, but married couples claim spousal support under the Divorce Act.
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Frequently asked questions
If you own the home, you have the legal right to kick out your common-law partner. However, it is not recommended as it will not be looked upon favourably by the court and could compromise your safety.
If you don't own the home, your partner cannot legally kick you out. You are not considered a tenant, and the police will not evict you.
If you have children together, your partner must give you reasonable time to find alternative housing.
If your partner has made significant financial contributions to the property, they may be able to claim a share in the property under the principle of unjust enrichment or constructive trust.
If your partner tries to kick you out, you should seek legal advice from a family lawyer to understand your rights and options.
