Anaya Nolan
While common-law marriages are not legally recognised in Canada, common-law relationships are acknowledged for certain purposes. The rights of common-law couples in Canada are often misunderstood, with many believing they are entitled to the same privileges as married couples. However, the laws surrounding common-law relationships vary across provinces and territories, and the criteria to qualify as a common-law couple differ as well. Common-law couples are not entitled to the same rights as married couples, especially regarding property claims. However, they may still have some property rights under common or judge-made law. When it comes to children, the rights and obligations of common-law couples are similar to those of legally married couples. While common-law marriages do not require a legal divorce, it is recommended that separating common-law couples seek legal advice to resolve issues related to child support, custody, visitation, and shared property.
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What You'll Learn
Common-law marriage criteria in Canada
In Canada, common-law marriage does not exist as a legal concept. However, common-law relationships are recognised for certain purposes and are subject to varying rights and obligations across the country. The criteria for what constitutes a common-law relationship differ between provinces and territories.
In Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years. However, if they have a child together, the requirement is reduced to one year. In Nova Scotia, a couple is considered common-law if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. In Saskatchewan, the requirement is two years of living together continuously, and in Quebec, it is two years of living together for tax purposes.
Despite the differences in criteria, some common themes emerge. A "conjugal relationship" in Canada typically involves sharing a home, finances, friend groups, and an emotional connection, in addition to a sexual relationship.
When it comes to separation, common-law couples do not go through a legal divorce process. Instead, they typically separate from their partner, stop living together, and annul any cohabitation agreement they may have. While the rights of common-law spouses during separation can vary, they generally have the same rights and obligations as legally married couples regarding children. However, the rights to property differ significantly, and common-law spouses may have limited entitlements in this regard.
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Common-law marriage rights
In Canada, common-law marriage does not exist in the legal sense, although common-law relationships are recognised for certain purposes. The rights of people in common-law relationships are often misunderstood, with many believing they are entitled to the same rights as a married couple. However, this is not the case. The laws regarding common-law relationships vary by province or territory across Canada, with each having its own criteria for what constitutes a common-law relationship. For example, in Quebec, common-law partnerships are not recognised as a form of marriage, but laws regarding de facto unions apply to common-law partners, and same-sex partners are also recognised for social benefit laws. In Saskatchewan, common-law relationships are regulated by The Family Property Act and The Family Maintenance Act.
Common-law couples do not have the same rights as married couples in Canada. For instance, upon separation, common-law spouses are not entitled to pursue a property claim, although they may still have some property rights under common law. In terms of child custody and support, common-law couples have the same rights and obligations as legally married couples.
In terms of divorce, common-law couples do not need to go through a formal divorce process, but it is important to resolve issues in writing so that both parties' rights and obligations are clear. If a common-law spouse meets the requirements of the applicable provincial legislation, they may be entitled to seek spousal support.
The term "common-law marriage" is often used to refer to unmarried cohabiting couples, whether heterosexual or same-sex. This is a social usage of the term, and it does not confer any legal rights or obligations on the couple.
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Child custody and support
While common-law marriage is not recognised in Canada, common-law relationships are recognised for certain purposes. Common-law spouses have the same rights and obligations as married spouses to care for children. This includes rights to custody of children and obligations to financially support them.
In Canada, all parents—married or not—are entitled to seek custody and access to their children. The laws regarding child custody, access, and support are the same in Canada regardless of whether or not a child's parents were legally married. The rights and obligations with respect to children are the same or consistent with the rights and obligations of separated legally married couples.
If the parents cannot decide on who will have custody of the children, the courts will decide based on what is in the children's best interest. The Children's Law Reform Act provides specific guidance on what a court must consider in assessing the best interest of the child. This includes:
- The love, affection, and emotional ties between the child and each person claiming custody.
- Other members of the child's family who reside with the child.
- Persons involved in the child's care and upbringing.
- The child's views and preferences, if possible.
- The length of time the child has lived in a stable home environment.
- The ability and willingness of each person applying for custody to provide for the child.
If the parents cannot agree on child support, a court can order support payments based on federal and provincial guidelines. The strength of a claim for spousal support depends on factors including the length of cohabitation, the income differential between the common-law spouses, and whether there are children.
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Property rights
In Canada, the rights of people in common-law relationships are often misunderstood. While common-law relationships are recognised in certain situations, Canada does not recognise common-law marriage as a legal concept. The rights and obligations of separated common-law couples differ significantly from those of married couples, particularly when it comes to property.
In most provinces and territories, common-law partners do not have an automatic right to an equal division of property upon separation. Each partner generally keeps what they own. For instance, if you contributed 20% towards a shared property, you would only receive your share back, not half of the property's value, as would be the case for a married couple. However, in certain provinces, such as British Columbia, common-law partners have the same property rights as married couples after living together for a specified period. In these cases, they share the value of all property accumulated during the relationship, as well as any increase in the value of property brought into the relationship.
In Ontario, the Family Law Act (FLA) only applies to "spouses", excluding cohabiting spouses from equalisation of family property. However, common-law spouses can pursue remedies under common law, such as constructive trusts resulting from unjust enrichment. A constructive trust allows a cohabiting spouse to gain a right to a particular asset, like the matrimonial home, even if they are not on the title.
In Quebec, a common-law spouse is not entitled to anything in the event of their partner's death, unless they are legally married. Similarly, in Saskatchewan, the Family Property Act and The Family Maintenance Act govern common-law relations, and a common-law partner is typically entitled only to what they personally own.
To ensure that common-law partners are protected, it is recommended to create a will naming them as a beneficiary. Common-law partners should also be aware that they have the same rights as married couples regarding their partner's pensions and social benefits, including the Canada Pension Plan (CPP) and Old Age Security (OAS). Additionally, common-law partners can make healthcare decisions for each other if their partner becomes incapacitated, although this typically requires a legal document, such as a Power of Attorney for Personal Care.
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Divorce lawyers
In Canada, the laws surrounding common-law relationships and their differences from legal marriages can be vague and vary across provinces and territories. While common-law marriages are not recognised in Canada, common-law relationships are recognised for certain purposes.
The rights of people in common-law relationships are often misunderstood, with many believing that a common-law couple has the same rights as a married couple, which is usually not true. For instance, in the case of separation, a common-law spouse is not entitled to pursue a property claim under provincial legislation as a legally married spouse would be. However, they may still have some property rights under common or judge-made law. For example, if a common-law spouse has been living in a property owned by their partner, they may be able to advance trust claims against their interest in that property.
When it comes to children, the rights and obligations of common-law couples are the same as those of legally married couples. This includes matters of child custody, child support, and access.
Given the complexities and variations in laws across Canada, it is advisable for those in a common-law relationship to seek legal advice from a divorce lawyer in their area. A divorce lawyer can help clarify the rights and obligations of each party in the event of a separation, particularly regarding spousal support, child custody, and property. They can also assist with legal paperwork that can benefit both parties and ensure that any agreements are resolved in writing.
It is important to note that divorce lawyers' fees vary in price and quality, so it is recommended to do research and schedule consultations to gain more insight.
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Frequently asked questions
A common-law marriage is defined as two people who live together in a committed “marriage-like” relationship. This term is used to refer to unmarried, cohabiting heterosexual couples.
The rights of people in a common-law marriage vary across different provinces and territories in Canada. Common-law couples are not entitled to the same rights as a married couple. However, they may be able to obtain certain benefits that married people receive.
The rights regarding property differ the most between married and common-law couples. A separated common-law spouse is not entitled to pursue a property claim under provincial legislation. However, they may still have property rights under common or judge-made law.
The rights and obligations regarding children are the same for common-law couples as they are for legally married couples.
Common-law marriages do not have a legal definition in Canada. However, it is recommended that a common-law couple seeks legal advice and consults a divorce lawyer to handle matters such as child support, custody, and visitation, as well as any shared property issues.
