Cecily Zamora
Common-law relationships in Canada are recognized across the country, but the definition of what constitutes a common-law partnership varies by province or territory. This includes the time required to be considered common-law partners, with some provinces recognizing common-law relationships after a certain period of cohabitation, typically between one and two years. In Quebec, for example, there are limited benefits for common-law couples, while in British Columbia, common-law partners are granted the same fundamental rights as married couples after two years of cohabitation. The presence of children can also affect how a common-law relationship is viewed legally, with couples who have a child together often being considered common-law years before a childless couple would be.
| Characteristics | Values |
|---|---|
| Definition | A common-law relationship in Canada is defined as two people living together in a conjugal relationship without being legally married. |
| Time required | The time required to be considered common-law partners varies across Canada. In British Columbia, common-law partners are granted the same rights as married couples after two years of cohabitation. In Quebec, common-law relationships are not recognized. |
| Rights | Common-law couples do not have the same rights as married couples. However, in certain areas, they may have similar rights, including property rights, rights to support, and rights for equal division of income. |
| Proof of relationship | To prove a common-law relationship, evidence of a marriage-like relationship is required, such as sharing bills, having joint ownership of assets, or filing taxes jointly. |
| Separation | If common-law partners separate, they are considered separated for tax purposes after 90 days of living apart due to a breakdown in the relationship. |
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What You'll Learn
Common-law recognition and rights vary by province
For example, in British Columbia (B.C.), common-law partners are granted the same fundamental rights as married couples after two years of cohabitation. However, in Quebec, common-law relationships are not recognised at all, and there are no legal benefits for common-law couples, although children can be considered an "extenuating circumstance". In Nunavut, common-law partners are not given priority to make medical decisions for their partners.
The definition of a common-law relationship typically involves two people living together in a conjugal relationship without being legally married for a period of at least 12 continuous months, although this can vary by province. The presence of children can also affect how a common-law relationship is viewed in the eyes of the law. For example, if a couple has a child together, they may be considered common-law spouses instantly, even without cohabiting for a minimum of 12 months.
To prove a common-law relationship, evidence must be provided to illustrate the marriage-like quality of the relationship. This can include sharing bills, having joint ownership of assets, or defining the relationship for federal tax purposes.
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Common-law rights are not equal to traditional marriages
One key difference between common-law and traditional marriages in Canada is the legal rights and obligations granted to each party. Married spouses have a wide range of legal rights and obligations concerning property, inheritance, taxes, and family law matters. For example, in the event of a divorce, married couples have automatic rights to property division and inheritance, while common-law partners may lack these automatic rights and may need to take additional steps to ensure their rights are protected.
Another difference lies in the recognition of common-law relationships across Canada. The definition of a common-law relationship and the time required to be considered common-law partners can vary from province to province. For example, in Saskatchewan, a couple is considered common-law after living together continuously for at least two years, while in Quebec, they are considered common-law for tax purposes after living together for two years.
Financial implications also differ between common-law and traditional marriages. Married couples may benefit from tax advantages, such as filing a joint tax return and accessing marriage tax benefits. While common-law partners may be eligible for some tax benefits, they are taxed individually and may not have the same access to certain tax credits or benefits.
Furthermore, common-law relationships may not provide the same level of legal protection as traditional marriages. In the event of a separation, common-law partners may not be entitled to certain rights, and the division of assets and debts can be more complex without a legal framework. Additionally, in the context of medical decision-making, common-law partners may not have the same priority as legally recognised spouses, and may need to rely on other legal mechanisms, such as a Power of Attorney, to ensure their wishes are respected.
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Common-law status for tax purposes
The Canada Revenue Agency (CRA) defines common-law partners as two individuals who live together in a conjugal relationship and have lived together for at least 12 consecutive months, including any period of brief separation of less than 90 days. Alternatively, if the couple has a child together, they are considered common-law partners regardless of cohabitation duration. This definition varies slightly from province to province.
If you meet the definition of a common-law couple, you must disclose this on your tax return. The CRA considers you married for tax purposes, and you must file accordingly. Each partner must file their tax return separately, but both must disclose their relationship status, along with their partner's name, social insurance number, and net income. The CRA uses the combined household income to determine eligibility for government benefits and tax credits.
There are several advantages to filing as a common-law couple:
- Income splitting: The higher-earning partner can contribute to their partner's Registered Retirement Savings Plan (RRSP), lowering their tax liability while building their partner's retirement plan.
- Combined deductions and credits: Couples can combine or transfer credits like spousal amount, medical expenses, and charitable donations, maximising their tax savings.
- Canada Child Benefit (CCB): If one spouse has a low or no income, the couple can increase their benefits based on combined income.
- Goods and Services Tax/Harmonised Sales Tax (GST/HST) credit: This credit is available to common-law couples and increases with combined income.
However, there are also some disadvantages to filing as a common-law couple:
- You may no longer be eligible for certain tax credits, such as the GST/HST credit, Canada Child Benefit, Guaranteed Income Supplement, and Working Income Tax Benefit.
- You will only be able to claim one exemption from capital gains on your primary residence.
- You may lose certain benefits you had when you were single, such as the GST/HST credit reduction and the Canada Child Benefit.
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Common-law status and immigration
In Canada, a common-law partnership is recognised for immigration purposes when a couple has lived together for at least one year in a conjugal relationship, as defined by Immigration, Refugees and Citizenship Canada (IRCC). This applies to couples of the same or different genders. The relationship must be proven with evidence of cohabitation and is considered on a case-by-case basis, focusing on the facts presented.
Canadian law treats common-law partners in much the same way as married couples, both for permanent and temporary immigration purposes. If you are a Canadian citizen or permanent resident, you can sponsor your common-law partner as a permanent resident through the family sponsorship programs. If you are applying for permanent residence yourself, you can include your common-law partner in your application, and they will receive permanent resident status simultaneously.
When it comes to immigration, it is important to understand your status. Common-law status is a topic that frequently causes confusion when discussing Canadian immigration matters. Although Canada recognises common-law partnerships, many other countries do not, and therefore some individuals who would be considered single in their country of origin may actually be common-law according to Canadian law. It is important to understand the concept so that any immigration declarations are made accurately (using the Canadian definition) as failing to declare that you have a common-law partner at the time of your application to Canada may result in that partner never being able to accompany you to Canada at a later date.
To prove a common-law relationship for Canadian sponsorship, one must provide a comprehensive set of documents that serve as tangible evidence of a genuine commitment, allowing immigration authorities to confidently evaluate the case. This includes proof of cohabitation, such as having the same address on documents like a driver's license, health care coverage, payslips, income tax filing, rental lease, and utility bills. It is also important to make it clear that your relationship isn't mainly for immigration reasons.
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Common-law status and separation
The definition of a "common-law spouse" in Canada varies depending on the province or territory. In Ontario, two people are considered common-law partners if they have lived together for at least three years. In some cases, couples who have cohabited for less than three years but have children together may also be considered common-law spouses.
There is no formal process for common-law couples to separate in Ontario. They can dissolve their union at any time without legal action. However, if the couple has lived together for an extended period, has children, or owns assets together, the separation can be complicated. In such cases, it is advisable to seek legal advice and sign a separation agreement.
Upon separation, common-law partners do not have the same rights and obligations as married couples. The most significant differences are in the areas of property rights and spousal support. In a common-law relationship, the home belongs to the person who purchased or rented it, and they have the legal right to ask their partner to leave. However, courts generally do not favour this action, especially if the partner is financially disadvantaged. If the partner applies for spousal support, the court may consider the conduct regarding the home in its decision.
Common-law partners can claim spousal support, which is typically calculated similarly to spousal support for married couples. However, determining whether a couple has cohabited for the required period can be challenging if they have maintained separate residences for work or other purposes. In such cases, if the partners held themselves out as spouses and demonstrated a long-term commitment and integration of their lives, they may still be considered to have cohabited.
Child custody and support laws apply equally to both married and common-law couples in Canada. Any parent can apply for custody or access to a child, and anyone who has acted as a parent ("in loco parentis") may be required to pay child support.
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Frequently asked questions
The length of time required to be considered common-law partners varies across Canada. In British Columbia, common-law partners are granted the same fundamental rights as married couples after two years of cohabitation. In Quebec, there are virtually no benefits for common-law couples, but having a child together may be considered an "extenuating circumstance". In most other provinces, living together in a relationship similar to marriage may be enough to be considered common-law.
A common-law relationship in Canada is defined as two people living together in a conjugal relationship without being legally married. This typically refers to couples that live together in an arrangement akin to marriage but without a ceremony or legal documents.
Common-law spouses in Canada have some similar rights to married couples, including property rights, rights to support, and rights for equal division of income. However, it's important to note that common-law spouses may not have equal rights to traditional marriages, and these rights can vary across provinces and territories.
To prove a common-law relationship in Canada, you must provide evidence that illustrates the marriage-like quality of your relationship. This can include sharing bills, having joint ownership of assets, sharing bank accounts, and more. It is also essential to organize paperwork and keep records of your living arrangements when filing for joint taxes, insurance benefits, or other applications.
Yes, there are exceptions. For example, the presence of children can significantly affect how a common-law relationship is viewed. In some cases, having a child together may instantly qualify a couple as common-law spouses, even without the typical length of cohabitation. Additionally, involuntary separation, such as for work or health reasons, may not impact common-law status as long as there is evidence that both parties intend to continue the relationship.
