Anaya Nolan
In Ontario, a couple is considered to be living in a common-law relationship if they have cohabited for at least three years, have a child together, or are in a relationship of some permanence. Common-law partners are not considered to be in a legally binding marriage and therefore do not have the same rights as a married couple. Common-law relationships are defined differently across various laws in Canada, and there is no single definition of a common-law relationship in Canada or in the province of Ontario.
| Characteristics | Values |
|---|---|
| Time of cohabitation | Minimum of three years or one year if the couple has a child |
| Conjugal relationship | Sharing a home, finances, friend groups, and an emotional and sexual relationship |
| Separation | If separated for 90 days due to a relationship breakdown, the couple is no longer considered common law |
| Involuntary separation | If one partner is away for work, school, health reasons, or is incarcerated, it is considered involuntary separation and the couple is still considered common law |
| Legal recognition | Couples can file a "Declaration of Domestic Partnership" to be legally recognized as domestic partners without getting married |
| Inheritance | Common law spouses don't inherit their partner's property by default unless specified in a will or if it was shared property |
| Spousal support | Common law partners may be entitled to spousal support |
| Immigration | Common-law partners may be eligible for immigration sponsorship |
| Tax benefits | Common-law partners may be eligible for tax benefits |
| Parental rights | Common-law partners may have parental rights and obligations |
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What You'll Learn
Common-law inheritance rights
In Ontario, common-law partners do not have the same inheritance rights as legally married spouses. Common-law spouses are not entitled to an inheritance unless they were named in their partner's will, or the asset was shared property.
In the case of an unmarried common-law partner dying without a will, the surviving partner is not considered in the legal processes that follow. Common-law partners cannot contest a will, as they are not included in the spouse category in the eyes of Ontario courts.
If a common-law partner was a dependent of the deceased, they may make a claim in court to seek support from the estate. The court decides the amount and duration of any support awarded, based on factors such as the age and health of the surviving spouse, the length of the relationship, and the age of any children of the deceased.
Common-law partners are eligible for survivor benefits from the Canada Pension Plan (CPP), but must have been living together for at least one year to qualify.
To summarise, common-law partners in Ontario do not have automatic inheritance rights and must be named in a will or designated as a beneficiary to receive an inheritance. They may, however, be entitled to pensions and spousal support if they can prove dependency on the deceased.
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Separation and divorce
In Ontario, common law spouses are defined as romantic partners who have lived together for longer than three years or who have lived together and have a child together. Common-law couples are not legally required to split property acquired when they lived together. However, if they have lived together for some time and have children together or have jointly purchased numerous assets, the separation process can be complicated.
Common-law couples can dissolve their union at any time, with no required legal action. There is no official "divorce" procedure for common-law partners, making it crucial for each individual to actively protect their rights and interests during this time. However, if there are children involved, child support is determined the same way for married parents as for unmarried ones. Both are calculated using the Child Support Guidelines.
Common-law partners, as well as legally married spouses, are eligible for survivor benefits from the Canada Pension Plan (CPP). Common-law partners must have been living together for at least one year to be eligible. However, it is important to note that common-law partners do not have the same rights as legally married spouses. For example, in the case of a common-law spouse's death, the surviving partner is not considered in the legal processes that follow unless they have a will.
To safeguard their interests, common-law couples can sign a cohabitation agreement, similar to a marriage contract. These agreements can set out terms in the event of a separation, such as property division. Both parties must sign the agreement in front of a witness for it to be legal, and any changes must be negotiated in writing and signed in front of a witness.
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Common-law tax purposes
In Canada, common-law couples are not allowed to file joint tax returns. Instead, each person must file their own tax return, indicating their marital status. Common-law couples will have access to certain tax benefits, credits, and deductions by nature of their relationship status. For example, common-law couples can benefit from combining charitable donations and medical expenses.
To be considered a common-law couple in Canada, you must have lived together in a conjugal relationship for at least 12 months. Alternatively, if you live with someone who is the parent of your child by birth or adoption, you are automatically considered to be in a common-law partnership with them.
If you are in a common-law relationship, you and your partner need to be apart for at least 90 days to be considered officially separated by the CRA and Revenu Québec. In the year of separation, a claim for the spouse or common-law partner amount is calculated using your partner's net income before the date of separation, rather than the whole year.
It is important to note that if you are in a common-law relationship, you must disclose that on your tax return. Failing to indicate the correct marital status is considered tax fraud.
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Common-law and immigration
In Ontario, common-law partnerships are generally recognised after a couple has lived together for at least three continuous years. However, for immigration purposes, a couple is considered to be in a common-law relationship after cohabiting for at least one year. This is also the case for federal tax purposes.
To prove their common-law status for immigration, the couple must submit a Relationship Information and Sponsorship Evaluation form. They must also provide evidence of cohabitation for at least one year. This evidence may include:
- Lease agreements or proof of joint home ownership
- Joint bank accounts, utility bills or credit cards
- Shared financial records
- Travel itineraries
- Frequent communication
It is important to note that the criteria for common-law relationships may vary depending on the specific immigration program or benefit plan in question. For example, some employers will cover partners who have lived together for only six months, while others require cohabitation for 12 months, 3 years, or even 5 years.
Additionally, sponsoring a common-law partner for immigration comes with financial responsibilities. The sponsor must demonstrate financial stability and the ability to support their partner without relying on social assistance (except for disability benefits). If the sponsored partner receives social assistance benefits, the sponsor will be required to reimburse the government.
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Common-law and child custody
In Ontario, a couple is considered to be in a common-law relationship if they have lived together in a conjugal relationship for a minimum of three years or if they share a child through birth or adoption, regardless of the duration of their cohabitation.
In Canada, all parents—married or not—are entitled to seek custody and access to their children. The Children's Law Reform Act is the Ontario legislation that governs child custody and access issues for common-law couples. It's important to note that custody refers to a parent's right to make decisions for their child on fundamental aspects of the child's life, such as health, education, and well-being. This is distinct from "access," which refers to visiting rights.
When it comes to child custody in Ontario, the court's primary focus is on the best interests of the child. The Children's Law Reform Act provides specific guidance on what the court must consider when assessing the child's best interests, including the love, affection, and emotional ties between the child and each person claiming custody or access. Other factors include the child's views and preferences, the moral, intellectual, emotional, and physical needs of the child, as well as their age, health, personality, and family environment.
There are different types of custody arrangements that can be granted by the court. These include sole custody, where only one parent has the right to make important decisions, and joint legal custody, where both parents have equal responsibility in decision-making and must consent to each other. Joint legal custody is ideal when parents can communicate effectively and set aside conflicts for the benefit of their children. In cases where one parent has sole custody, the other parent may still have access and visitation rights, as well as the ability to express opinions on important issues.
It is important to note that common-law partners in Ontario do not have the same rights as legally married spouses, and this extends to child custody and inheritance matters. Common-law partners may not automatically be entitled to inheritance or property from their spouse, but they may be entitled to pensions, insurance, and spousal support.
If you are in a common-law relationship in Ontario and have questions or concerns about child custody and access, it is recommended to seek legal advice from an experienced family lawyer who can guide you through the specific laws and procedures in the province.
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Frequently asked questions
Common-law partners do not have the same rights as legally married spouses. For example, common-law partners are not entitled to an inheritance in Ontario unless they are named in their partner's will. Additionally, there is no official "divorce" procedure for common-law partners.
A couple is generally considered common-law in Ontario if they have lived together in a conjugal relationship for a minimum of three years. However, the Canadian Revenue Agency (CRA) has a lower threshold of 12 continuous months for tax purposes.
A conjugal relationship is a romantic relationship where the couple shares a home, finances, friend groups, and an emotional and sexual relationship.
