Keith Mack
In Canada, divorce is a complex process that varies depending on the province or territory in which one resides. While the federal Divorce Act serves as the overarching legislation, each province and territory has its own set of rules and procedures for obtaining a divorce. This paragraph aims to introduce the topic of how common-law divorce differs between two Canadian provinces, British Columbia (BC) and Ontario, exploring the unique considerations and complexities that individuals in common-law marriages may face when navigating the end of their relationships.
| Characteristics | Values |
|---|---|
| Time to be considered common-law in BC | 2 years |
| Time to be considered common-law in Ontario | 3 years |
| Rights of common-law partners in BC | Same legal and financial rights as married couples |
| Rights of common-law partners in Ontario | No automatic right to inheritance, division of family property or a share of the matrimonial home |
| Divorce application forms and procedures | Vary from province to province |
| Court-granted divorce | Takes effect 31 days after being granted by the judge |
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What You'll Learn
Common-law relationship definition
In Canada, a common-law relationship is a marriage-like relationship where the two partners live together and share a conjugal relationship. This includes sharing a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship. The criteria for common-law relationships vary across different provinces in Canada.
In British Columbia (BC), a couple is considered to be in a common-law relationship after living together in a marriage-like relationship for 2 years. However, if the couple has lived together for any duration (even less than 2 years) and has a child together, they are considered common law for the purpose of spousal support.
In Ontario, two people are considered common-law partners if they have continuously lived together in a conjugal relationship for at least 3 years.
It is important to note that common-law relationships are not legally recognised in the same way as marriage in Canada. There is no legal process for ending a common-law relationship; instead, the couple typically needs to separate, stop living together, and annul any cohabitation agreement. Common-law partners may not automatically inherit their partner's estate unless specified in a will, as the laws of each province may vary.
Divorce laws in Canada apply to legally married couples, and the process may differ based on the province or territory. To obtain a divorce in Canada, one must be a Canadian resident and meet at least one of the following criteria: living apart for one year or more, physical or mental cruelty from the spouse, or adultery. Additionally, reasonable child support arrangements must be made for any children of the marriage.
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Rights and responsibilities
In BC, a couple is considered common law after living together in a marriage-like relationship for two years. This is a significant distinction, as it confers upon them the same legal rights and responsibilities as a legally married couple. This includes inheritance rights, the ability to claim compensation in the event of a spouse's fatal injury, and eligibility for pension and survivor benefits. When it comes to separation, common-law spouses in BC have the same rights and obligations as legally married couples, encompassing spousal support, child support, and the division of property and debt.
On the other hand, Ontario takes a different approach to defining common-law relationships. In Ontario, a couple is considered common law after living together in a marriage-like relationship for at least three years. Unlike BC, common-law couples in Ontario are not automatically entitled to the division of family property or a share of the matrimonial home. When it comes to property division, common-law spouses in Ontario must prove ownership or contribution to claim property rights, whereas married couples have an automatic right to equalize their net family property. Additionally, common-law partners in Ontario do not have the same inheritance rights as married spouses and must be explicitly named in a will to inherit their partner's estate.
It is important to note that the rights and responsibilities during divorce can be complex, and they may vary depending on individual circumstances. While some couples may be able to agree on issues such as child support, custody, spousal support, and property division, others may require mediation or court intervention. Consulting a lawyer or seeking legal advice is always recommended to understand one's rights and obligations during the divorce process, as it can differ between provinces and territories.
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Division of property
In British Columbia (BC), couples are considered common-law spouses under the Family Law Act after living together in a marriage-like relationship for two years. On the other hand, in Ontario, a couple is considered common law after living together for at least three years. This distinction is crucial when it comes to the division of property during a separation or divorce.
In BC, common-law spouses have the same legal rights and responsibilities as legally married spouses, including the division of property and debt. All property and debt acquired during the spousal relationship may be divided between spouses according to the law. This means that upon separation, common-law spouses in BC must address issues such as dividing property and debt, spousal support, and child support.
In Ontario, the legal framework for common-law relationships differs significantly from that of traditional marriage, particularly regarding property division. While married couples in Ontario follow the equalization of net family property under the Family Law Act, common-law partners must navigate a less structured legal landscape. Common-law partners in Ontario keep assets in their name unless they can successfully prove legal claims, such as resulting trusts or unjust enrichment. Clear agreements or legal interventions are often necessary to ensure an equitable division of property for common-law spouses in Ontario.
It is worth noting that, in both BC and Ontario, the existence of a common-law relationship may be disputed. While cohabitation is a significant indicator, other factors are considered by the court in determining whether a relationship is "marriage-like."
Given the complexities of family law and the differences between provinces, it is always recommended to seek legal advice when navigating a common-law separation or divorce, especially when it comes to the division of property.
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Spousal support
In British Columbia, spousal support is decided in two steps. First, it must be determined if an individual is entitled to spousal support. If they are, the next step is to calculate the amount of spousal support and the duration for which it must be paid. The amount and duration of spousal support are decided after considering the circumstances of each spouse, including their financial situation, and what the person requesting spousal support needs to become self-sufficient.
In BC, spousal support could compensate a spouse who gave up opportunities to help the other spouse pursue their career or opportunities. It may also be required to limit the economic hardship caused by separation or to help a spouse become financially independent after separation.
In Ontario, the Divorce Act does not apply to common-law spouses. This means that spouses who lived in a marriage-like relationship do not need a divorce order to formally end their relationship. However, if a couple has lived together for less than two years but has a child or children together, the right to claim spousal support arises.
In both provinces, spousal support is usually paid monthly, but it can also be paid as a lump sum. It is important to consult a family law professional when calculating spousal support as it is a complex process.
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Child support
In British Columbia (BC), there is a central authority that assists left-behind parents whose children have been abducted across international borders. There is also the option to enrol in the BC Family Maintenance Agency and use the Child Support Recalculation Service to annually recalculate child support without going to court.
In Ontario, the Federal Guidelines apply unless both parents live in the province, in which case the province's guidelines are followed. These guidelines are similar to the Divorce Act and other laws in Canada, but there may be important differences. For example, Ontario's guidelines may use different tables to calculate the basic child support amounts.
In both provinces, there are family justice counsellors and child support officers who can provide information about child support and calculate support ranges. They can also work with both parents to negotiate a support amount if both agree.
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Frequently asked questions
In BC, a couple is considered common-law after living together in a marriage-like relationship for 2 years. In Ontario, a couple is not considered common-law until they've lived together in a marriage-like relationship for at least 3 years.
In BC, common-law spouses have the same legal and financial rights and responsibilities as married couples. In Ontario, common-law partners do not have automatic rights to the matrimonial home or to inherit their partner's estate unless explicitly named in a will.
In BC, common-law spouses have the same rights and obligations as married spouses upon relationship breakdown, and there is no need to file any forms or court documents. In Ontario, there is no formal "common-law divorce" process, and separating common-law partners must navigate legal challenges such as property division, spousal support, and child custody.
