Gavin Howe
In Ontario, common-law relationships are legally recognised as de facto, meaning that they must be proven on a case-by-case basis. Unlike marriages, common-law relationships lack a marriage certificate as legal proof of the partnership. Hence, a statutory declaration is often required for common-law couples to assert their rights in legal matters, such as property division, spousal support, or tax advantages. This declaration is a sworn statement, typically signed in front of a notary public, that includes personal details and outlines the duration of the relationship. To be considered a common-law partnership in Ontario, couples must be 18 years or older, not legally married, and have lived together for at least 12 consecutive months, sharing responsibilities and financial obligations. This can be proven through various forms of evidence, such as rental agreements, shared bills, and official IDs with the same address. By providing solid proof of their relationship, common-law couples can establish their legitimacy and gain approval for partner sponsorships or immigration purposes.
| Characteristics | Values |
|---|---|
| Purpose | Immigration, government benefits, legal matters, financial and administrative purposes |
| Requirements | Both partners must be 18 years or older, not legally married, and living together for at least 12 months |
| Evidence | Property ownership, rental agreement, shared bills, official IDs with the same address, shared financial responsibilities, insurance benefits |
| Documentation | Statutory Declaration of Common-Law Union (IMM 5409), sworn statement, proof of cohabitation, duration of relationship |
| Considerations | Emotional and sexual aspects of the relationship, separation for less than 90 days due to breakdown, involuntary separation for work, health, or incarceration |
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What You'll Learn
Understand common-law partnership criteria
To be recognised as a common-law partnership in Ontario, you and your partner must fulfil certain criteria. Firstly, both partners must be 18 years old or older. Secondly, the couple must live together in a marriage-like partnership, sharing responsibilities and financial obligations, without being legally married. This means that common-law partners cohabit and share essential life documents, financial responsibilities, and expenses. They may also own property or have a rental agreement, shared bills, or joint bank accounts together.
It is important to note that common-law relationships typically lack the formal documentation associated with a traditional marriage, so other forms of evidence are required to prove the authenticity of the partnership. This could include proof of cohabitation and the duration of the relationship, which must be at least 12 consecutive months of living together. This duration requirement may be shorter if the couple has a child together. Additionally, the relationship must have an emotional and sexual aspect to distinguish it from a long-term housemate situation.
In Ontario, a statutory declaration of common-law marriage is a legal document used to confirm the existence of a common-law relationship. This declaration is often required for immigration, legal, or financial purposes, such as applying for government benefits or asserting rights in legal matters like property division or spousal support. The declaration includes personal details about both partners, such as their names, addresses, and dates of birth, as well as information about the duration of their relationship.
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Prove cohabitation and shared finances
In Ontario, a couple is considered to be in a common-law partnership when they have lived together for at least 12 consecutive months. This also applies to couples who share a child—biological or adopted—in which case, the duration requirement is lowered to one year.
To prove cohabitation, you may provide evidence such as a rental agreement, property ownership, or shared bills like electricity and credit cards. Having official IDs with the same address further demonstrates cohabitation.
To prove shared finances, you may show evidence of shared financial responsibilities and expenses. This could include sharing essential life documents like employment or insurance benefits that recognize both partners as each other’s common-law partners. Additionally, you may indicate if you have joint bank accounts, jointly signed credit cards, or declared your common-law union under the Canadian Income Tax Act.
It is important to note that the purpose of providing this evidence is to prove that your common-law relationship is real and genuine, and not primarily for immigration reasons. By providing solid proof, you meet the legal requirements and demonstrate a strong partnership.
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Declare common-law status for benefits
In Ontario, a couple is considered common-law if they have cohabited for at least three years or have cohabited for at least one year and have a child together. To declare common-law status for benefits, you may need to obtain an affidavit of your common-law relationship from a lawyer or notary public. An affidavit is a legal document that confirms that two people are in a common-law relationship and can be used to apply for spousal benefits from employers, such as health insurance, drug coverage, dental benefits, extended medical coverage, and pension benefits.
To obtain an affidavit of common-law relationship, you can meet with a notary public or commissioner of oaths, who will prepare the document. The affidavit will include a sworn statement that sets out the length of time the couple has cohabited and lists other evidence to show that they are in a committed relationship. You may be able to get an affidavit form from your employer, insurance company, or the organization to which you are submitting the completed affidavit. If they do not have a form, you can use a free joint affidavit template to create your own.
In addition to the affidavit, you may also need to complete a Statutory Declaration of Common-Law Union, which is a legal document that provides evidence of a common-law relationship between two people. This document is often needed when applying for government benefits, such as pensions, health care, or tax advantages that are available to married or common-law couples. It can also be used to assert rights in legal matters, such as property division, spousal support, or inheritance claims. The declaration includes personal details about both partners, such as their names, addresses, and dates of birth, and outlines the duration of their relationship.
To get your Statutory Declaration of Common-Law Union commissioned, you can use an online service like NotaryPro, which offers an online document creator and can connect you with a notary public online. You can also meet with a licensed professional in person to have them draft the document for you. Once the document is complete, the authorized official will confirm each partner's identity, witness their signatures, and provide their full name, signature, and official stamp to certify the declaration's validity.
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Complete the IMM 5409 form
To complete the IMM 5409 form, you must first download it and open it using Adobe Acrobat Reader version 10 or higher. The form may not open on tablets or mobile phones, so be sure to use a computer. Save the form on your computer in a place you can remember, and read the step-by-step instructions on how to complete it.
The IMM 5409 form is a solemn declaration where both parties declare the truth of its contents in front of a qualified public official. In Canada, this public official can be a Notary Public, a Commissioner of Oaths, or a Commissioner of Taking Affidavits. Outside Canada, it can be a Notary Public or an equivalent official who is authorised to accept a solemn declaration in that jurisdiction.
The form requires the number of continuous years you cohabited as a couple, with the start and end dates. If you are still living together at the time of signing, the end date can be "to present" or the date you will sign the form. If you have more than one period of cohabitation, put the most recent period when you lived together for more than 12 months in duration.
The form includes a series of yes or no questions, as well as checkboxes to indicate the following:
- Whether you have jointly signed a residential lease, mortgage, or purchase agreement for a residence in which you both live.
- Whether you jointly own property other than your residence.
- Whether you have a joint bank, trust, credit union, or charge card account.
- Whether you have declared your common-law union under the Canadian Income Tax Act (T-1 "General Individual Income Tax Return").
- Whether you have life insurance that names your common-law partner as a beneficiary.
- Whether your common-law partner has life insurance that names you as a beneficiary.
If you answered "no" to the first three questions, indicate other documentary evidence that would support your relationship as common-law partners.
Once you have filled out the form, click the "Validate" button at the top. This will help identify any missing information. Do not sign or date the form until you are in front of the public official, and use your full legal names as shown on your passport. The form can be typed or completed by hand in black ink.
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Seek legal advice for a cohabitation agreement
In Ontario, common-law spouses do not have the same property rights as married couples under the Family Law Act. This means that without a cohabitation agreement, one party could be left without their fair share of property acquired during the relationship.
A cohabitation agreement is a legally binding contract between common-law partners, outlining property and financial rights and obligations. It helps define the division of property and debts in case of separation. It is best to create a cohabitation agreement before or at the start of a relationship to sort out matters beforehand. However, you can also make this agreement at any time during your relationship.
To be legally enforceable, a cohabitation agreement must meet the following requirements under Ontario's Family Law Act:
- Written document: Verbal agreements are not legally binding.
- Signed by both partners: Both individuals must sign the agreement voluntarily.
- Witnessed: A third party must witness and sign the document.
- Full financial disclosure: Both partners must disclose all assets, income, and debts.
- Independent legal advice: Each partner should consult a lawyer independently to ensure fairness and that their financial interests are protected.
A cohabitation agreement cannot dictate matters related to child custody or child support, as these issues must be determined based on the child's best interests under Ontario family law.
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Frequently asked questions
A common-law relationship is a marriage-like partnership between two individuals who live together but are not legally married. This typically refers to couples who have lived together continuously for one to three years, sharing responsibilities and financial obligations.
To prove a common-law partnership in Ontario, you must be 18 or older and have lived together for at least 12 consecutive months. You can provide various forms of evidence, including proof of cohabitation, such as rental agreements, shared bills, and official IDs with the same address.
A statutory declaration is a legal document used to confirm the existence of a common-law relationship. It is often required for immigration, legal, or financial purposes, serving as proof of partnership in the absence of a marriage certificate. The document includes personal details about both partners and outlines the duration of their relationship.
