Cecily Zamora
In Canada, a common-law relationship is when two individuals live together in a marriage-like situation without being legally married. While the exact laws of a common-law marriage vary by province or territory, generally, a couple must live together for a specific period of time, ranging from one to three years, to qualify as common-law partners. When a common-law relationship ends, the partners do not have the same legal rights to property division as legally married couples, and they do not need to go through a legal divorce process. However, they may have similar rights and obligations regarding spousal support, child custody, and asset division, which can be outlined in a separation agreement.
| Characteristics | Values |
|---|---|
| Common-law relationship definition | Two people living together in a committed "marriage-like" relationship without being legally married |
| Common-law relationship duration | The duration to qualify as a common-law relationship varies across provinces in Canada. It could range from one year to three years. |
| Rights and obligations | Common-law couples do not have the same legal rights to property division as married couples. However, they have similar rights and obligations regarding children. |
| Separation agreement | Common-law couples can create a separation agreement outlining the division of assets, child custody, and other issues. |
| Spousal support | Common-law spouses may be entitled to spousal support, depending on factors such as the length of cohabitation and the presence of children. |
| Property rights | Common-law spouses are not entitled to pursue property claims under provincial legislation but may have property rights under common or judge-made law. |
| Protection upon separation | Common-law spouses can protect their rights by entering into a signed cohabitation agreement before separation. |
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What You'll Learn
Child custody and child support
When it comes to child custody and child support, the laws in Canada are the same for common-law couples as they are for married couples. The first step in any child support agreement is determining who will have primary custody of the child. The next step is to calculate how much child support the non-custodial parent will pay to the custodial parent. The Federal Child Support Guidelines set out the basic formula for this calculation.
It is important to note that a criminal record will affect child custody and adoption. 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 as well for the purposes of child support.
In Canada, the rights and obligations of separated common-law couples and separated legally married couples are most different when it comes to property. A separated common-law spouse is not entitled to pursue a property claim under provincial legislation as a separated legally married spouse would be. However, the separated common-law spouse may still have property rights under common (or judge-made) law. For example, if you have been living in a property owned by your common-law spouse, you may be able to advance trust claims against their interest in that property.
Since the laws surrounding separation in common-law relationships can be vague and vary depending on the province, it is recommended to retain legal representation. A lawyer who specialises in family law and common-law spouses will be able to properly answer your questions, address your concerns, and ensure that all of your rights are protected.
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Property division
In Canada, marriage is considered an economic partnership, and upon divorce, each spouse is entitled to half the value of the property acquired during the marriage, not half the property itself. This is calculated by dividing the Net Family Property (NFP) of each spouse, with the spouse with the higher NFP paying half the difference to the other spouse.
However, common-law couples are not entitled to the equalization of their family property. The provisions in Ontario's Family Law Act (FLA) that govern the division of property apply only to married couples, not to common-law couples. Each partner in a common-law relationship is entitled only to what they brought into the relationship or acquired during it.
If you and your partner want to share your property differently, you can make a cohabitation agreement, also called a domestic contract. This can be useful to prevent disputes by setting out what happens to specific property at the end of the relationship.
If there is jointly owned property, it must be divided or its value shared. If you contributed financially or otherwise to your partner's property, you might be able to claim a share of that property. You can make a claim for unjust enrichment if your partner is retaining a disproportionate share of the profits of your joint venture.
If you need to go to court for a decision on the amount of an equalization payment, you have six years from the day you separated, or two years from the day your divorce is finalised (whichever is sooner).
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Spousal support
In Ontario, common-law partners do have rights when it comes to spousal support, but the process of proving eligibility can be complicated. Unlike legally married couples, common-law couples are not eligible to receive a divorce under the federal Divorce Act because they are not legally married. This means that upon separation, there may be no automatic entitlement, and parties may be required to prove their eligibility for spousal support.
To receive spousal support in Ontario, certain requirements must be met. After determining if your common-law relationship meets the legal requirements, you will need to demonstrate at least one of three requirements to establish entitlement:
- You had responsibilities during the relationship that prevented you from building your career and, therefore, suffered an economic loss.
- The separation left you in need of financial support, and the other spouse has the required means to provide such support.
- You have a legal agreement, such as a cohabitation agreement, that entitles you to spousal support.
Once entitlement is established, the amount of spousal support will depend on several factors and will be determined either in a separation agreement or by a judge. The exact amount will depend on the specifics of the case, and it is best to consult with a lawyer to determine what to expect. Many factors need to be considered to determine an amount that is fair and appropriate in each case. The Spousal Support Advisory Guidelines (SSAGs) are often used by lawyers and judges to help decide how much spousal support should be paid and for how long.
It is important to note that spousal support may not be indefinite. The separation agreement or order may include a review date, which allows for the spousal support amounts to be reassessed and potentially changed or ended. Additionally, if your order or agreement clearly states that spousal support is to end on a particular date or upon a certain event, then payment can be stopped at that point.
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Common-law relationship criteria
In Canada, a common-law relationship is when two individuals live together in a marriage-type situation without being legally married. Common-law relationships are recognised by provincial and federal law, and the rights and obligations of these relationships vary from province to province.
The criteria for a common-law relationship differ based on the province in which the couple resides. In most provinces, common-law relationships are recognised after 1 to 3 years of continuous cohabitation or if the couple has a child together. For federal tax purposes, 'living common-law' refers to couples who have been living together for 12 continuous months or who share a child by birth or adoption. This 12-month timeline also applies in the context of immigration.
In Ontario, if there are no children involved, a couple must have lived together for more than three years to be considered common law. However, if they have a child together, they only need to have lived together for one year. In Quebec, common-law relationships are referred to as de facto unions, and a couple is considered common law for tax purposes after living together continuously for at least two years.
To prove a common-law relationship, documents such as shared ownership of residential property, joint leases, rental agreements, joint utility accounts, and important documents showing the same address (e.g. driver's licenses, insurance policies) can be used.
It is important to note that the rights of people in common-law relationships are different from those of legally married couples. For example, a separated common-law spouse is not entitled to pursue a property claim under provincial legislation, but they may still have property rights under common or judge-made law. Additionally, a common-law partner is generally only entitled to what they personally own, but they may be able to make a claim to property if they have contributed to it.
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Separation agreements
In Canada, a common-law relationship is when two individuals live together in a marriage-type situation without being legally married. The laws regarding common-law marriages vary across different provinces and territories in Canada. For instance, in Ontario, a couple without children needs to have lived together for more than three years to be considered common law.
Now, when it comes to ending a common-law marriage, it is important to understand your rights and obligations. Common-law partners do not have the same legal rights and obligations as married couples upon separation. For instance, unlike married spouses, common-law partners do not have an equal right to possess the matrimonial home. The home belongs to the person who purchased it and whose name is on the title or lease.
If you own the home, you have the legal right to ask your partner to leave, but it is not recommended unless you are afraid for your safety. If you do so, the court may view this negatively, especially if your partner is in a less financially stable position.
Regarding separation agreements, it is advisable to seek legal advice and sign a separation agreement to outline the rights and responsibilities of both parties. While you can draft your own agreement, it is recommended to have a lawyer review it before signing. This is known as independent legal advice. The separation agreement should cover relevant issues, such as child support, spousal support, and property division.
Child support obligations are generally determined in the same way for married and unmarried parents, using the Child Support Guidelines. It is important to note that if you have acted as a parent to your common-law partner's children from a previous relationship, you may be required to pay child support for them as well.
Spousal support rights for common-law spouses depend on factors such as the length of cohabitation, income differential, and the presence of children. Property division is another aspect to consider, and unlike married couples, common-law partners do not have the same rights to claim property under provincial legislation. Each partner is generally entitled to what they brought into the relationship or acquired during it.
To summarise, ending a common-law marriage in Canada involves understanding your rights and obligations, particularly regarding child support, spousal support, and property division. It is recommended to seek legal advice and create a separation agreement to outline the terms of the separation, protecting the rights of both partners.
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Frequently asked questions
A common-law marriage in Canada is when two individuals live together in a marriage-like situation without being married legally. They live together in a conjugal relationship for a minimum of one year or have a child together.
There is no legal process for ending a common-law marriage in Canada. To end the relationship, you need to separate from your partner, stop living together, and annul your cohabitation agreement, if you have one. It is recommended that you hire a lawyer to help you handle legal and financial issues, such as division of property and debts, and whether spousal support is needed.
Common-law marriages are treated similarly to traditional marriages in several legal contexts. However, the division of property is not as mandatory as in a traditional marriage. Each partner will leave the relationship with their own assets and debts.
The eligibility criteria for a common-law marriage vary across different provinces in Canada. Generally, the couple must have lived together in a conjugal relationship for a continuous period of at least 12 months. However, some provinces may have longer requirements, such as two years in Saskatchewan and Quebec.
