Kara Sears
In Ontario, Canada, common law is a de facto relationship that must be proven in each individual case, unlike a marriage, which is a de jure relationship. Common-law couples in Ontario do not have the same rights as married couples, particularly when it comes to property and assets. While common-law partners can claim spousal support, they do not have automatic inheritance rights and must actively establish their claim to shared property upon separation.
| Characteristics | Values |
|---|---|
| Definition of common-law relationship | A couple is considered to be in a common-law relationship once they have been in a marriage-like relationship for 12 months or longer. |
| Common-law rights | Common-law couples do not have the same rights as married couples with respect to property, assets, and inheritance. |
| Cohabitation requirements | Common-law partners must have been living together for at least one year to be eligible for certain benefits and rights. |
| Property rights | Property belongs only to the person who bought it, and common-law couples cannot divide the increase in value of their individual properties. |
| Spousal support | Common-law couples may develop spousal support obligations to each other, but entitlements are less clear compared to married couples. |
| Separation process | There is no official "divorce" procedure for common-law partners, and the separation process can be more complex without the legal framework of marriage. |
| Restraining orders | The court may issue restraining orders against a current or former spouse or cohabitant if there are reasonable grounds to fear for an individual's safety. |
| Child support | Common-law partners may have child support obligations, but the specific laws vary across provinces. |
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What You'll Learn
Common law vs. marriage
In Ontario, adult relationships are categorized as either common law or legally married unions. A common law relationship is when two individuals cohabit without partaking in an official marriage ceremony. Common law couples simply need to choose to move in with one another, whereas married couples must obtain a marriage license and go through a wedding ceremony.
While common law and married couples in Ontario share some similarities, such as both being considered spouses under the Family Law Act, there are significant differences in the legal rights, protections, and entitlements afforded to each type of relationship. Married couples enjoy broader protections and more extensive rights and responsibilities than common-law partners.
One key difference between common law and marriage in Ontario pertains to property rights. In a marriage, spouses share the value of the matrimonial home and are entitled to the equalization of family property. On the other hand, common law couples do not have the same rights to property and assets. Property belongs only to the person who bought it, and common law couples cannot divide the increase in value of the property they brought into the relationship. However, if one partner contributed financially to their spouse's property, they may be able to claim a share through a constructive trust resulting from unjust enrichment.
Another difference relates to spousal support. Married couples are viewed as equal economic partners under the law, and in the event of a divorce, there is a division of financial gains from the marriage. Common law partners, on the other hand, need to establish claims based on individual contributions rather than automatic rights. While common law status does entitle partners to claim spousal support, it is managed through cohabitation or separation agreements, and common law partners do not inherit their spouse's property by default in the absence of a will.
Additionally, the process of separation differs between common law and married couples. Married couples must go through formal divorce proceedings, while common law partners can simply separate without filing for divorce. However, legal disputes may arise over property division, spousal support, and child custody in both types of relationships.
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Property rights
In Ontario, common-law couples do not have the same rights as married couples when it comes to property ownership and division. Unlike married couples, common-law partners do not have the automatic right to share in the value of property acquired during the relationship or to divide their property equally upon separation. Property typically belongs solely to the person who purchased it, and there is no requirement to split any increase in the value of property brought into the relationship.
However, there are exceptions and nuances to these rules. Common-law couples can enter into domestic contracts, such as cohabitation or separation agreements, to outline their respective rights to property in the event of a breakup. These agreements can specify how finances, property, and debts will be handled during and after the relationship. If there is no agreement in place, family law professionals or the courts can help determine property division, but this can be a complex and challenging process.
One important consideration is the concept of unjust enrichment. If one partner can demonstrate that they contributed financially or through significant sacrifices, such as unpaid domestic labour, to the acquisition or maintenance of a property, they may have a claim to a portion of that property through a constructive trust. This allows a partner who is not on the legal title to gain a beneficial interest in the property, provided the court decides that their partner was unjustly enriched at their expense.
Additionally, in certain circumstances, common-law spouses may be able to apply for possession of the matrimonial home as part of spousal support, even if the home is not in their name. This is outlined in Section 29 of the Family Law Act. Furthermore, upon the death of a common-law partner, the surviving spouse may not inherit property unless it was left to them in a valid will or was jointly owned. However, they may be entitled to pensions, insurance, and spousal support, depending on their specific situation.
In summary, while common-law couples in Ontario do not have the same property rights as married couples, they still possess certain rights and options for establishing and protecting their interests in property. These rights can be complex and vary depending on the specific circumstances of each case.
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Cohabitation agreements
In Ontario, a common-law couple does not have the same rights as a married couple. Common-law couples are considered less financially and legally attached than married couples, and they do not have the same rights when it comes to property and assets. For instance, common-law couples cannot divide the increase in value of the property they brought with them to the relationship.
A cohabitation agreement is a legal contract that enables unmarried or common-law spouses who plan to live together or are already living together to outline their rights and obligations as a result of their relationship. It is a useful strategy to protect both parties, as it means a creditor cannot access the property of both partners. It also prevents either party from making claims on the other's assets.
- Asset ownership or co-ownership: Specify how assets such as a car, land, or house will be owned or divided in the event of a separation.
- Gifts: Include gifts and heirlooms received by each individual to ensure they remain with the respective owner after a split.
- Previously owned property: Outline ownership rights for all property owned before and after entering the relationship.
- Monthly bills, loans, and debts: Detail financial obligations that will be incurred jointly as a couple.
- Residency arrangement in case of separation: Address who will continue to live in the shared residence in the event of a separation.
- Mutual investments: Outline any mutual investments in a business or other ventures.
- Parental rights: If there are children from a previous relationship, the cohabitation agreement must state their parental rights, as well as any desired education path, moral training, or religion.
It is important to note that cohabitation agreements in Ontario do not address child support or custody matters, as these issues must be resolved through the courts.
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Spousal support
In Ontario, spousal support, also known as alimony, is payable to a "spouse". A spouse can be a common-law partner, so living together with someone can eventually give rise to an obligation to pay spousal support, even if the couple is not married. In Ontario, you are considered a "spouse" once you marry. If you and your partner are living together, you will be considered a spouse for spousal support purposes if you have cohabited for three years, or if you live in a relationship of some permanence and have a child together.
There is no limitation period on claiming spousal support in Ontario, but the longer you wait, the harder it may be to persuade a judge that spousal support is necessary. If a person is self-sufficient and it can be demonstrated that they do not need support, then it may be determined that this person is not entitled to spousal support. Spousal support may be more likely to be denied if the situation involves younger people, a short-term relationship, and no children.
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Separation
In Ontario, common law couples do not have the same rights as married couples, especially when it comes to property and assets. When a common-law relationship ends, property in one person's name remains theirs, while anything in both names is divided equally.
There are, however, some exceptions to this rule. Common law spouses can have a share in the value of the property through a constructive trust resulting from unjust enrichment. This allows a spouse to claim a share of the property, even if they don't hold the legal title, as long as the courts decide their partner was unjustly enriched at their expense. This could include a spouse doing unpaid work at home, working without pay for a family business, or staying home with children and doing the majority of the housework.
Cohabiting spouses may also get a constructive trust over the matrimonial home, which gives each spouse joint equitable interest and joint possessory rights in the home.
If a couple has lived together for some time, has children together, or has jointly purchased numerous assets, the separation process can be complicated, and legal advice should be sought. A separation agreement can be signed to set out how assets will be divided and spousal support amounts.
In Ontario, two people are considered common-law partners if they have been continuously living together in a conjugal relationship for at least three years. If they have a child together, this period is only one year.
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Frequently asked questions
A common-law relationship in Ontario is a de facto relationship, meaning it must be proved in each individual case based on the facts. A couple is considered to be in a common-law relationship once they have been in a marriage-like relationship for 12 months or longer.
Common law partnerships generally have fewer rights and duties than legal marriages. Common-law couples do not have the same rights as married couples when it comes to property and assets. They also cannot divide the increase in value of the property they brought with them to the relationship.
To prove a common-law relationship, you may need to provide a statutory declaration confirming your common-law status, which must be signed before a notary public or commissioner of oaths.
