Cecily Zamora
In Canada, common law refers to a couple who live together in a conjugal relationship without being legally married. Common-law relationships are recognized in Canada, but the specific definition varies depending on the context and the province. For federal tax purposes, 'living common-law' means cohabiting for 12 continuous months or sharing a child, while in Ontario, it means cohabiting for three years or one year if the couple has a child. Common-law spouses do not have the same rights as married spouses, and a formal divorce is not required to separate. However, remedies are available at common law for cohabiting spouses, such as constructive trusts and unjust enrichment claims. To prove a common-law relationship, couples can provide evidence of cohabitation, such as shared utility bills, rental agreements, and identification documents showing the same address.
| Characteristics | Values |
|---|---|
| Time living together | 1-3 years of continuous cohabitation, or 1 year if the couple has a child together |
| Relationship type | A conjugal relationship, in which two people share a home, finances, friend groups, and an emotional connection on top of having a sexual relationship |
| Legal recognition | No legal proof of a genuine relationship, so other forms of evidence are required, such as proof of cohabitation or the duration of the relationship |
| Property ownership | Owned by the individual who holds legal title; no automatic equalization regime |
| Separation | No formal divorce needed; separation can be official without going to court |
| Rights and protections | Limited protections compared to married couples; a domestic contract, such as a Cohabitation Agreement, can establish or change rights and responsibilities |
| Sponsorship | Sponsoring a partner enables them to obtain permanent residence and live and work in Canada |
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Cohabitation agreements
A cohabitation agreement is a legal agreement between two people who live together as a couple, regardless of their sexual orientation. It is a way for couples to formalize arrangements on matters not covered by the law. The agreement can be made before or during cohabitation.
The agreement provides a sense of emotional and financial security for couples who choose not to marry. It can address matters such as property rights, spousal support, child support, and other financial matters. It can also address what will happen to any pets in the event of a separation.
In some jurisdictions, a lawyer is required to draw up the agreement, but even if it is not mandatory, seeking legal counsel is highly recommended. The agreement should be reviewed at least once a year and can be modified or cancelled as long as both parties agree. It is important to note that cohabitation agreements cannot determine the rights of custody or access to children.
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Property division
In Canada, common-law status varies by province and legal context. Most provinces recognize common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together.
In Ontario, Canada, 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 by birth or adoption, then they only need to have been living together for one year. In Canada, a "conjugal relationship" is more than just a sexual relationship. A "conjugal relationship" in Canada is one in which two people share a home, finances, friend groups, and an emotional connection on top of having a sexual relationship.
Unlike married couples, common-law couples are not entitled to the equalization of their family property. Each partner in a common-law relationship is therefore entitled only to whatever he or she brought into the relationship or acquired during it.
However, if you have been in a long common-law relationship and you feel that you have contributed extensively to the value of a certain asset that belongs to your partner—a home in which you lived, or a pension or savings account, for example—and that it is therefore unjust for your spouse to retain the full value of that asset, then you are not entirely without recourse. While, as indicated, a common-law partner is not automatically entitled to equal property division or to share the family home, you can make a claim for a constructive trust to remedy unjust enrichment. In order to show unjust enrichment, you will have to show that:
- You and your partner were engaged in a joint family venture; and
- Your partner is retaining a disproportionate share of the profits of that venture.
A constructive trust gives the beneficiary a right to property in a particular asset, such as the matrimonial home. A cohabitating spouse who has stayed home with the children and completed the majority of domestic services may be awarded a monetary award or a constructive trust over the matrimonial home where their contribution is connected to the home itself.
In Alberta, common-law couples are called adult interdependent partners. Not all relationships are considered adult-interdependent partnerships, as they must meet certain criteria set out in the Adult Interdependent Relationships Act (AIRA). Generally, an adult interdependent relationship arises when the parties have lived together in a relationship of interdependence for a continuous period of at least 3 years. Otherwise, an adult interdependent relationship may also arise if the relationship is of some permanence, such as if the parties have a child together.
In British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two continuous years, or if they’ve lived together for less than two years but have a child together.
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Spousal support
In the United States, spousal support is handled differently in each state. For example, Texas recognises common-law marriage and grants the same rights to common-law couples as to couples with a marriage license, including the right to seek spousal support. However, Texas law draws a distinction between spousal support and alimony, and it is important to understand the difference when ending a common-law relationship. In other states, such as Illinois, a divorce lawyer will need to review your circumstances to determine whether you qualify for alimony in a common-law marriage.
In Canada, spousal support is also awarded at the discretion of the judge. The judge will determine whether spousal support should be paid, as well as the amount and duration of the payments. In Ontario, Canada, a common-law relationship is defined as two people continuously living together in a conjugal relationship for at least three years, or one year if they have a child together. In British Columbia, a couple is considered to be in a common-law relationship after living together in a marriage-like manner for at least two years, or less if they have a child together.
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Child support
In Oregon, child support is calculated based on the income of both parents. When establishing or modifying a support order, both parents are required to provide income information. If the other parent's wage or occupation is unknown, the state's full-time minimum wage is used for calculation purposes. Income for child support purposes includes items excluded for income tax purposes, such as gifts and inheritances. Employee benefits, such as a company car or house, may also be counted as income if they reduce living expenses.
In California, child support money may be used to "improve the standard of living of the custodial household", and the recipient is not required to account for how the money is spent. Child support orders may earmark funds for specific items for the child, such as school fees, daycare, and medical expenses.
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Tax purposes
In Canada, common-law couples are treated the same as married couples for tax purposes. This means that common-law partners have access to certain tax benefits, credits, and deductions.
To be considered common-law, a couple must meet the definition outlined in the federal Income Tax Act. The two key factors are how long you've lived together and whether you have children together. The CRA defines a common-law relationship as when two people live together in a conjugal relationship for 12 continuous months, or immediately if they have a child together. If you meet this definition, you must indicate your relationship status on your tax return. Each partner must file their own tax return, but you will need to include your partner's name, social insurance number, and net income on your return.
There are several tax benefits to being in a common-law relationship. You may be able to combine receipts for medical expenses and charitable donations to maximize your credits and pay less tax. You can also transfer some tax credits from your spouse's return to yours and claim all or part of certain amounts that your spouse qualifies for. You may also be able to split pension income with your partner to reduce your overall tax liability.
It is important to note that a change in your marital status can impact your tax situation. For example, your entitlement to the GST/HST credit and the CCB may change since they are based on "adjusted family net income." If your partner earns an income, your adjusted family net income will usually increase, and you may no longer receive these credits.
Overall, while there are tax benefits to being in a common-law relationship, it is crucial to understand the distinctions and accurately report your marital status to avoid potential complications.
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Frequently asked questions
A common-law partnership is when two people live together in a conjugal relationship without being legally married. This typically involves sharing a home, finances, friend groups, and an emotional connection, as well as having a sexual relationship.
The requirements for proving a common-law partnership vary depending on the context and the province. In most cases, you need to demonstrate cohabitation for a certain period, usually 12 months, although some provinces require three years. Having a child together often reduces the required cohabitation period to one year. You can use various documents to prove your relationship, such as shared leases, utility bills, and identification documents showing the same address.
Common-law partners do not have the same legal rights and protections as married couples, especially regarding property ownership and spousal support. Common-law partners can separate without going to court, but they may need to negotiate fair separation terms with the help of a family law mediator. It is recommended that common-law partners create a domestic contract, such as a cohabitation agreement, to establish their rights and responsibilities regarding property division and other issues.
For federal tax purposes in Canada, 'living common-law' refers to couples who have lived together for at least 12 continuous months or share a child. This definition impacts tax filings and eligibility for partner sponsorship programs, allowing non-married partners to permanently reside in Canada.
