Kara Sears
In Canada, common-law relationships are recognized by the government but do not have equal rights to traditional marriages. The definition of a common-law relationship varies across provinces, but it generally refers to couples who live together in a marriage-like relationship without a formal ceremony. The federal government recognizes a couple as common-law after 12 months of consecutively living together or if they have children together. However, each province has different criteria for recognizing common-law relationships, which can impact property rights, inheritance, and spousal support in the event of separation or death. It is important for couples in common-law relationships to understand their rights and have the necessary legal documents prepared to protect their future.
| Characteristics | Values |
|---|---|
| Definition | Couples living together in a marriage-like relationship without a formal ceremony |
| Recognition | Common-law relationships are recognized in Canada, but rights differ from married couples |
| Federal recognition criteria | 12 months of consecutively living together or having children together |
| Provincial recognition criteria | Varies by province; e.g. Ontario: 3 years or 1 year with a child; Saskatchewan: 2 years |
| Rights | Similar to married couples for immigration, pension, tax purposes; differ in property, inheritance, and support rights |
| Legal documents | Living Will, Power of Attorney, Cohabitation Agreement |
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What You'll Learn
Common-law recognition by the federal government
In Canada, common-law relationships are recognized by the federal government for tax, immigration, and pension purposes. The Canadian Revenue Agency (CRA) treats common-law couples similarly to married couples when filing income taxes. The CRA determines benefits like GST/HST credit or Canada Child Benefits based on the couple's combined income. For federal tax purposes, 'living common-law' refers to couples who have either been living together for 12 continuous months or who share a child by birth or adoption.
The federal government's recognition of common-law relationships after 12 months of cohabitation also applies in the context of immigration. However, it is important to note that family law falls under provincial law, and each province has varying criteria for recognizing common-law relationships. This means that the definition of common law in most other contexts, such as estate planning, inheritance rights, and property division, is up to each individual province.
For example, in Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years, unless they have a child together, in which case the requirement is one year of cohabitation. In Saskatchewan, a couple is considered common law after living together continuously for at least two years. In Quebec, common-law relationships are referred to as de facto unions, and for tax purposes, a couple is considered common law after living together for two years.
The recognition of common-law relationships in Canada comes with certain rights and responsibilities. Common-law couples may have similar rights to married couples in some areas, such as tax benefits and immigration. However, in the absence of a will, common-law partners may not automatically have the same rights as married couples regarding property division, inheritance, and spousal support. It is important for couples to understand the legal implications of their relationship status and to seek legal advice when necessary.
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Common-law rights
Common-law relationships are recognized in Canada, but the rights of common-law couples differ from those of married couples in several ways. While the federal government treats common-law couples similarly to married couples in some contexts, such as immigration, pensions, and taxes, there are differences in how they are treated by the provincial governments, which have jurisdiction over several family matters.
Property Rights
In most provinces, common-law partners are not automatically granted the same property rights as married couples. In the event of a separation, common-law couples must defer to provincial or territorial laws that govern the division of shared property. The Family Law Act (FLA) in Ontario, for example, only applies to "spouses," which does not include cohabiting common-law partners. As a result, there is no net family property calculation or equalization payment in common-law situations. However, courts may be increasingly recognizing that property rights apply to cohabitants.
Inheritance Rights
Common-law partners may not automatically inherit their spouse's property or assets in the event of their death. This varies by province and legal context, and it is important to have a will in place to ensure your wishes are carried out.
Spousal Support
In the event of a separation, common-law partners are not entitled to spousal support or alimony in the same way that married couples are. The Supreme Court of Canada has upheld the differences between common-law unions and legal marriages when deciding on spousal support.
Child Custody
Common-law partners may not be automatically considered for guardianship or custody of their children in the event of a separation. If both parents are common-law partners, they have the same moral and legal responsibilities towards their children as married couples. However, if one parent is a step-parent, they may need to be appointed as a guardian in a will to ensure their rights are protected.
Tax Benefits
Common-law couples can access some marriage tax benefits not available to single people, such as a tax credit for spouses or common-law partners if their income is below a certain amount. They can also split tax credits or create a spousal RRSP. However, they must provide their partner's tax information when filing their tax return, and they do not need to file a joint return or list combined incomes.
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Common-law and cohabitation agreements
In Canada, common-law relationships are recognised by the federal government after a couple has lived together for 12 continuous months or if the couple has a child together. However, the definition of common law in most other contexts is up to each individual province. For example, in Ontario, two people are considered common-law partners if they have lived together for at least three years, or one year if they have a child together. In Saskatchewan, a couple is considered to be in a common-law relationship after living together for two years.
Common-law partners do not have the same rights as married couples. Their rights include property rights, access to benefits, and various family-related responsibilities. For instance, common-law partners do not benefit from an equalisation of family property. In the event of a separation, common-law couples must defer to the provincial or territorial laws that govern the division of shared property.
Cohabitation agreements can help common-law partners protect their rights. These agreements outline the rights and obligations of each partner and can include anything the couple considers necessary, such as what will happen to the couple's finances if they separate. Cohabitation agreements are especially important for common-law partners as they do not have the same protections as married couples.
While cohabitation agreements are not a requirement, they can provide peace of mind and help manage the unexpected. It is important to consult a lawyer when drafting a cohabitation agreement to ensure that it complies with the laws of the province or territory in which the couple resides.
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Common-law separation
In Canada, common-law couples who separate are considered to have the same rights and responsibilities as legally married couples. This means that if a common-law couple separates, they will have legal obligations to fulfil.
The first step in ending a common-law relationship is to create a separation agreement, which can be done with or without the help of a lawyer. This document outlines the division of assets and debts, child custody and support, and spousal support. Common-law couples do not have the same rights to property division as married couples, so living arrangements can be complex. Each person keeps their own property and is responsible for their debts. If an asset is jointly owned, its value is divided equally, which can be done by one partner "buying out" the other, or by selling the asset and dividing the proceeds.
Child custody, access, and support laws are the same in Canada for both common-law and married couples. The Federal Child Support Guidelines set out the basic formula for calculating child support, but each province or territory has its own guidelines.
It is important to note that the laws surrounding common-law separation in Canada can vary depending on the province or territory, so it is recommended to seek legal advice to ensure that one's rights are protected.
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Common-law inheritance
In Canada, common-law relationships are recognised, but they do not carry the same rights as traditional marriages. The rights of common-law couples vary across different provinces, and each province has its own criteria for defining common-law relationships.
In Ontario, Canada, two people are considered common-law partners if they have lived together continuously in a conjugal relationship for at least three years. If they have a child together, they only need to have lived together for one year. Under the Ontario Succession Law Reform Act (SLRA), common-law spouses are treated differently from married spouses. A legally married spouse has automatic rights to their deceased spouse's property. On the other hand, if a common-law spouse dies without a will or does not adequately provide for their common-law spouse in their will, there is no automatic right to inheritance or property through an equalisation payment.
In Quebec, common-law relationships are referred to as de facto unions. For tax purposes, a couple is considered common-law after living together continuously for two years. In the event of the death of one partner, the surviving common-law spouse is not entitled to any inheritance unless they were legally married.
In Saskatchewan, a couple is considered to be in a common-law relationship after living together continuously for at least two years, as defined in the province's Family Property Act.
While the federal government treats common-law couples similarly to married couples in certain areas, such as immigration, pensions, and tax purposes, provincial governments have jurisdiction over family matters, and rights vary. Common-law couples may face more challenges in obtaining the same property, inheritance, and support rights automatically granted to married couples. For example, in the context of estate planning, the federal government recognises common-law relationships after 12 months of consecutive cohabitation or if the couple has children together. However, the definition of common-law for estate planning purposes is determined by each province.
To summarise, common-law inheritance rights in Canada vary depending on the province. While some provinces include common-law partners in their definition of spouses for inheritance purposes, others do not. It is important for common-law couples to understand their rights and have the correct documents prepared to protect their future.
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Frequently asked questions
The length of time varies depending on the province and context. For federal tax purposes, couples are considered common-law after living together for 12 continuous months or if they have a child together. In Ontario, couples are considered common-law after living together for three years, or one year if they have a child together. In Saskatchewan, couples are considered common-law after living together for two years.
No, common-law couples do not have the same rights as married couples in Canada. Common-law couples are treated similarly to married couples for immigration, pension, and tax purposes. However, they do not have equal rights when it comes to property, inheritance, and support rights.
Without a will, common-law partners may not automatically inherit each other's property, depending on provincial laws. It is important for common-law couples to understand their rights and have the correct documents prepared to protect their future.
