Kara Sears
In Canada, a common-law spouse is someone with whom you are in a conjugal relationship but are not legally married to. The definition of a common-law spouse varies across different provinces in Canada. In most provinces, a couple is considered to be in a common-law relationship after 1 to 3 years of continuous cohabitation or if they have a child together. In Quebec, a common-law relationship is often referred to as a de facto union, and a couple is considered common law for tax purposes after living together continuously for at least two years. Common-law spouses are not treated the same as legally married spouses in most places in Canada, especially when it comes to intestate and succession laws.
| Characteristics | Values |
|---|---|
| Definition | A common-law spouse is someone with whom you are living in a conjugal relationship and is not your married spouse. |
| Common-law marriage recognition | In Canada, while some provinces may extend to couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married. They may be legally defined as "unmarried spouses" and for many purposes such as taxes and financial claims, treated the same as married spouses. |
| Common-law status | 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 Quebec, it is referred to as a de facto union and is recognized after 2 years of living together. |
| Inheritance rights | Common-law partners may not automatically inherit, depending on provincial laws. Outside of BC, Manitoba, Saskatchewan, and Northwest Territories, your common-law partner would not have the same inheritance under succession laws as a married spouse. In Quebec, a common-law spouse is always entitled to nothing. |
| Work permits | Common-law partners may be eligible for an open work permit. |
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What You'll Learn
Common-law spouses are not treated the same as legally married spouses
In Canada, common-law spouses are not treated the same as legally married spouses. The term “common-law spouse” refers to unmarried couples who are cohabiting, whether or not registered, or in other legally formalized relationships. While some provinces may grant couples in marriage-like relationships certain rights and responsibilities akin to those of a marriage, they are not considered legally married.
The distinction between common-law and legally married spouses is particularly evident in matters of inheritance and property division. In most places in Canada, common-law partners do not have the same inheritance rights as married spouses under succession laws. In the event of intestacy, where an individual dies without a will, a common-law partner may need to file a claim to the estate, which may or may not be approved, depending on the specific circumstances and the judge's discretion.
In contrast, in Quebec, a common-law spouse is always entitled to nothing in the event of their partner's death, unless they are legally married. Similarly, when it comes to property division, only married spouses are entitled to equalization of family property under the Family Law Act (FLA). Cohabitating spouses are not considered "spouses" under the FLA and, therefore, do not benefit from the equal division of financial gains.
Additionally, the length of time required to qualify as a common-law spouse varies across provinces in Canada. Most provinces recognize common-law relationships after one to three years of continuous cohabitation or if the couple has a child together. For example, in Ontario, two people are considered common-law partners if they have lived together in a conjugal relationship for at least three years.
It is important to note that the legal rights and protections afforded to common-law spouses in Canada differ from those of legally married spouses. While common-law spouses may be treated similarly to married spouses in certain contexts, such as taxes and financial claims, they do not enjoy the same legal recognition and protections in areas such as inheritance and property division.
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Common-law marriage criteria
The criteria for common-law marriage vary across different provinces in Canada. Most provinces recognize common-law relationships after 1 to 3 years of continuous cohabitation or if the couple has a child together. In Quebec, a common-law relationship is often referred to as a de facto union, and it is recognized for tax purposes after at least two years of living together. In Ontario, two people are considered common-law partners if they have lived together in a conjugal relationship for at least three years.
It is important to note that common-law spouses are generally not treated the same as legally married spouses under succession laws in Canada. Outside of BC, Manitoba, Saskatchewan, and the Northwest Territories, common-law partners do not have the same inheritance rights as married spouses. In Quebec, a common-law spouse is not entitled to any inheritance. To ensure that a common-law spouse is protected in the event of death, it is recommended to create a will naming them as a beneficiary.
In terms of financial claims, common-law partners may be treated similarly to married spouses in certain contexts, such as taxes. Under the Family Law Act (FLA), there is an equal division of financial gains in a marriage, but this typically only applies to legally married "spouses" and not cohabitating spouses. However, there are remedies available at common law for cohabitating spouses, such as the constructive trust resulting from unjust enrichment.
While some provinces in Canada may grant couples in marriage-like relationships many of the rights and responsibilities of a legal marriage, they are not legally considered married. They may be defined as ""unmarried spouses" and treated similarly to married spouses for specific purposes, such as taxes and financial claims.
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Common-law and taxes
In Canada, the term "common-law spouse" has significant legal implications, particularly when it comes to taxes and other financial matters. While the definition of a common-law partnership varies across different provincial and federal laws, it generally refers to two people who live together in a long-term, mutually dependent relationship. Here's an overview of common-law relationships and how they pertain to taxes in Canada:
Definition of Common-Law Spouse in Canada:
In the context of Canadian law, a common-law spouse is recognized federally when two people have cohabited in a conjugal relationship for at least one year. This definition is used by the federal government for tax purposes and for various benefits and programs administered by the federal government, such as Old Age Security (OAS) or Canada Pension Plan (CPP) benefits. However, it's important to note that the definition can vary across provinces and territories for other legal matters like property division or support obligations.
When it comes to taxes, common-law spouses in Canada are treated similarly to married spouses by the Canada Revenue Agency (CRA). Here are some key points to consider:
- Filing Status: Common-law spouses can choose to file their taxes as a couple or individually, just like married spouses. This decision depends on your personal situation and which option provides the most tax benefits. You may want to consult a tax professional to determine the most advantageous filing status for your specific circumstances.
- Income Reporting: If you are considered common-law spouses, you must report your partner's income when filing your taxes, even if you choose to file separately. This is similar to the requirement for married couples.
- Tax Credits and Deductions: Common-law spouses may be eligible for various tax credits and deductions, such as the spousal amount tax credit, the equivalent-to-spouse amount, and the Canada Caregiver Credit. These credits can reduce the amount of tax payable and are designed to recognize the financial support provided within the relationship.
- Child-Related Benefits: Common-law spouses can also apply for child-related benefits, such as the Canada Child Benefit (CCB). The income of both common-law partners is considered when assessing eligibility and calculating benefit amounts. Additionally, common-law spouses may also be eligible for other child-related tax credits, such as the Child Care Expense Deduction, depending on their childcare arrangements.
- Provincial and Territorial Variations: While federal tax laws apply across Canada, each province and territory may have slightly different rules and credits for common-law spouses. Make sure to review the specific regulations for your province or territory to ensure you're taking advantage of all applicable tax benefits.
- Proof of Common-Law Status: When filing taxes, you may be asked to provide proof of your common-law status. This could include documents such as a lease agreement, mortgage documents, or joint utility bills showing that you and your partner have cohabited for at least 12 consecutive months.
In conclusion, common-law spouses in Canada are afforded similar rights and responsibilities as married couples when it comes to taxes. By understanding the definition of a common-law spouse and the tax implications that come with it, you can ensure that you're complying with tax laws and taking advantage of all the benefits to which you're entitled. Remember to stay informed about any changes to tax laws that may impact your filing status and available credits or deductions.
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Common-law and inheritance
In Canada, the laws surrounding common-law relationships and inheritance vary across provinces. In Ontario, for instance, the Succession Law Reform Act (SLRA) governs how a deceased person's property will be distributed to their surviving relatives if they die without a will (intestate). Under the SLRA, married and common-law spouses are treated differently. A legally married spouse has automatic rights to their deceased spouse's property, whereas a common-law spouse does not have automatic rights to inheritance or property through an equalization payment if their spouse dies without a will or does not adequately provide for them in their will.
In British Columbia, a qualifying common-law spouse is entitled to a preferential share of their spouse's estate if they die without a will. To qualify as a common-law spouse in this context, the surviving partner must demonstrate that they were in a marriage-like relationship with the deceased for at least two years immediately preceding their death.
In some cases, common-law spouses may have claims against the estate on the basis of unjust enrichment, where there was a valuable gain to the deceased at the expense of the survivor without a legal reason for that gain. The court may award a constructive trust, granting property equal to the surviving spouse's contribution, or quantum meruit, a monetary award based on the promise of a future award from the deceased spouse.
To avoid estate litigation, it is advisable for common-law couples to draft wills that consider the needs of both spouses and include them as beneficiaries.
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Common-law and immigration
Canadian citizens and permanent residents can sponsor their spouse, common-law partner, or conjugal partner to immigrate to Canada and obtain permanent residency. The spousal sponsorship program is a key part of Canada's immigration system, facilitating family reunification.
To be considered a common-law partner, you must have lived with your partner for at least 12 consecutive months in a marriage-like relationship. This means that you have been in a continuous and committed relationship for at least a year, but significant obstacles such as cultural, religious, or immigration barriers have prevented you from residing together.
When sponsoring a spouse or common-law partner, there are specific requirements that must be met. The sponsor must demonstrate sufficient income or assets to support the spouse or partner once they arrive in Canada and must not be receiving income support benefits or be in bankruptcy proceedings. Employment Insurance benefits or disability benefits do not disqualify a sponsor. The sponsor is responsible for fulfilling the basic needs of the sponsored person, including everyday and health needs for three years. This includes medical expenses not covered by public health insurance, such as dental and eye care. It is important to note that the sponsorship agreement cannot be cancelled or withdrawn, even if the sponsor's financial situation changes.
There are two main sponsorship options: Outland and Inland. If the principal applicant (the person being sponsored) lives outside of Canada or does not plan to stay in Canada during the application process, the Family Class sponsorship option should be chosen. If the principal applicant lives with the sponsor in Canada and holds or previously held a valid immigration status, the Spouse or Common-Law Partner in Canada Class is applicable.
Additionally, all applicants must pass background, security, and medical checks, and the sponsored person must have valid temporary resident status in Canada or be exempt from needing this status under public policy. If the sponsored spouse or common-law partner leaves Canada while the application is being processed, there is no guarantee they will be allowed to re-enter, especially if they require a visitor visa.
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Frequently asked questions
A common-law spouse in Canada is someone you are living with in a conjugal relationship for at least 12 continuous months. In Quebec, a common-law relationship is often referred to as a de facto union, and it is recognised for tax purposes after two years. 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.
In most places in Canada, common-law spouses are not treated the same as legally married spouses when it comes to intestacy. Outside of BC, Manitoba, Saskatchewan, and the Northwest Territories, your common-law partner would not have the same inheritance under succession laws as a married spouse. In Quebec, a common-law spouse is not entitled to anything.
If you are a Canadian citizen, Registered Indian, or permanent resident of Canada who is 18 years or older, you can sponsor your common-law partner who lives with you in Canada. Your spouse or partner may be able to apply for an Open Work Permit.
