Gavin Howe
In Ontario, common-law marriage is recognised as a legitimate partnership between two individuals of any gender. Unlike a legal marriage, common-law spouses are not required to meet the legal requirements of marriage. Instead, they simply need to cohabit and establish a conjugal relationship for a minimum of three years or have a child together and maintain a relationship of some permanence. While common-law marriages are granted many of the rights and obligations that married couples have, there are significant differences, particularly regarding property rights and the process of separation.
| Characteristics | Values |
|---|---|
| Definition of common-law marriage | A conjugal relationship in which two people live together in Canada without being legally married |
| Time period | A couple is considered to be in a common-law relationship in Ontario after living together for at least three continuous years or if they have a child together and maintain a relationship of some permanence (generally, one year). |
| Legal status | Common-law partners do not have the same rights as a legally married spouse. |
| Property rights | Common-law partners do not have automatic inheritance rights or property sharing rights. |
| Separation | Common-law partners do not need a formal divorce to make their separation official. |
| Tax returns | Common-law partners don't need to file joint tax returns. |
| Survivor benefits | Common-law partners are eligible for survivor benefits from the Canada Pension Plan (CPP). |
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What You'll Learn
Common-law property rights
In Ontario, common-law couples and married couples are treated very differently under the law. Common-law couples have fewer legal rights than married couples when it comes to property rights and rights to the family home.
Firstly, common-law couples do not have the right to equalize their net family property. Each person usually keeps everything they brought into the relationship, property they personally own, and jointly owned property is shared. However, if a common-law spouse has contributed financially or non-financially to the property of their partner during the relationship, they may have a right to a share in the value of the property through a constructive trust resulting from unjust enrichment. This means that a court can award monetary compensation if one partner can prove that the other is unjustly retaining a disproportionate share of the profits of a joint family venture.
Secondly, common-law spouses do not have an equal right to live in the family home. There are no special rights to a family home occupied by a common-law couple, and the interest in the home remains with the person(s) who hold legal title to the property. There is also no right to participate in decisions about its sale or mortgaging. However, a common-law spouse may have a claim to an interest in a family home if they can show a specific contribution to the purchase or improvement of the property.
Thirdly, common-law couples do not have the same rights to each other's pensions as married couples. In a common-law relationship, each partner is only entitled to whatever they brought into the relationship or acquired during it.
It is important to note that, unlike a marriage, there is no legal process for ending a common-law relationship in Canada. To end the relationship, you typically need to separate from your partner, stop living together, and annul any cohabitation agreement.
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Common-law vs. marriage rights
In Ontario, Canada, common-law relationships are legally recognised, but they do not carry the same rights as marriages.
A couple is considered to be in a common-law relationship in Ontario after living together in a conjugal relationship for a minimum of three continuous years. If the couple has a child together, by birth or adoption, this period is reduced to one year. A "conjugal relationship" in Canada is defined as two people sharing a home, finances, friend groups, and an emotional connection, in addition to having a sexual relationship.
One of the key differences between common-law and marriage rights in Ontario is the division of property and assets. In a marriage, the couple has the automatic right to divide and share the value of their property through the equalisation of net family property. On the other hand, common-law couples can only divide the property if it was owned jointly. However, if one partner contributed financially to the other's property during the relationship, they may have a right to a portion of it through a constructive trust resulting from unjust enrichment.
Another distinction lies in the legal process for ending the relationship. Unlike a marriage, which can only be legally terminated through divorce, there is no formal legal process for dissolving a common-law relationship. To end the relationship, the couple typically needs to separate, stop living together, and annul their cohabitation agreement if they have one.
In terms of financial matters, common-law couples in Ontario have more autonomy and maintain separate legal statuses. They can independently manage their finances and personal decisions, but this also means they are individually responsible for their debts and assets. Married couples, on the other hand, are required to file joint tax returns.
Upon the death of a spouse in a marriage, the surviving spouse is considered next of kin and has legal rights in the eyes of the court. They are entitled to inherit property and assets, and can contest a will. In contrast, common-law spouses in Ontario do not have the same legal rights. If a common-law partner dies without a will, the surviving partner is not considered in the legal processes and cannot contest the will.
It is important to note that the definition of common-law and the associated rights and obligations can vary across different provinces in Canada. While common-law relationships offer more flexibility and autonomy, they may also come with limited protections, especially for the partner with fewer assets.
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Common-law separation
In Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years. However, if the couple has a child together, the three-year requirement is waived, and they are considered common-law even if they have not cohabited for three years.
When it comes to common-law separation in Ontario, there is no formal process or legal action required, and these couples can dissolve their union at any time. However, the separation process can be complicated, with serious legal and financial matters to be negotiated and finalised. It is recommended that separating common-law couples seek legal advice to understand their rights and obligations regarding child custody, child support, spousal support, and division of property.
Unlike married couples, common-law spouses in Ontario do not automatically have the right to divide or share property. Each spouse generally keeps the property that is in their name, unless there are joint names on the title deed, in which case the division may depend on the specific ownership arrangement. An exception may occur if one spouse significantly contributed to the other's property rights, such as through substantial mortgage payments or renovations. In such cases, a resulting trust may be established, where the contributing spouse becomes a beneficial interest holder and is entitled to compensation for their contributions.
It is important to note that common-law parents in Ontario have similar rights and responsibilities regarding child custody and access as married parents. The primary focus in any child custody case is the child's best interests, and courts consider various factors to determine custody and access arrangements.
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Common-law and taxes
In Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years. For federal tax purposes, however, '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. This definition is important for tax purposes, as common-law couples are treated the same as married couples under the federal Income Tax Act.
When filing taxes as a common-law couple, both partners must disclose their relationship status, the name of their partner, their partner's social insurance number, and their net income (even if it is zero) on each of their returns each year. The Canada Revenue Agency (CRA) calculates government benefits based on household income, so it combines the income for both partners to determine eligibility for certain tax credits and benefit amounts.
There are several advantages to filing as a common-law couple. For example, you may be able to combine receipts for medical expenses and charitable donations to maximise your credits and pay less tax. You may also be eligible for the Family Tax Cut (for couples with at least one child under 18), and the $5,000 Home Buyers tax credit amount. Additionally, common-law status may unlock eligibility for certain tax credits and benefits not available to single filers, such as the Goods and Services Tax (GST)/Harmonized Sales Tax (HST) credit, the Canada Child Benefit, and the spousal amount tax credit. Income-splitting opportunities are also available to common-law couples, which can potentially lower the overall tax burden by allocating income to the partner in a lower tax bracket.
However, there are also some disadvantages to filing as a common-law partner. There may be an increased obligation for accuracy, as the need for thorough and precise reporting of both partners' incomes can complicate the filing process, especially if one partner has variable income sources. Additionally, a higher combined income may reduce eligibility for certain income-tested benefits and credits, such as the Guaranteed Income Supplement.
It is important to note that, unlike a marriage, which can only be legally ended with divorce, there is no legal process for ending a common-law relationship. To end the relationship, you typically need to separate from your partner, stop living together, and annul your cohabitation agreement if you have one. In the case of separation, you and your partner need to be apart for at least 90 days to be considered officially separated by the CRA. When filing a return for the year of separation, the claim for the common-law partner amount is calculated using your partner's net income before the date of separation.
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Common-law and immigration
In Ontario, a couple is considered to be in a common-law relationship after living together for at least three continuous years. However, for federal tax purposes, the definition of "living common-law" is a couple that has either been living together for 12 continuous months or shares a child by birth or adoption. This 12-month timeline also applies in the context of immigration.
When it comes to immigration, the Canadian government has separated applications into several classes. The Family Class allows eligible Canadian citizens and permanent residents to sponsor their relatives as immigrants to Canada. Eligible relatives include children, parents, grandparents, spouses, or common-law partners. To sponsor a spouse or common-law partner, individuals may do so under the Family Class or the Spouse or Common-Law Partner in Canada Class.
To sponsor a spouse or common-law partner, one must be a permanent resident for at least five years. The person being sponsored and their family members must pass background, security, and medical checks. Additionally, the sponsor and their common-law partner must submit a Relationship Information and Sponsorship Evaluation form, along with evidence that they have lived together for at least one year. It is important to note that if an individual sponsors their partner as an immigrant to Canada, they are financially responsible for that person even if they break up.
Recognizing Canadian common-law marriages within the United States immigration framework can be challenging due to the specific requirements for marriage under U.S. immigration law and the qualifications for common-law relationships in Canada. Canadian common-law marriages generally do not meet the criteria for dependent visa status in the U.S. as the rights afforded to common-law couples in Canada may not align with U.S. standards for marriage equivalence.
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Frequently asked questions
A common-law marriage in Ontario is a legitimate partnership between two individuals of any gender. It is a de facto relationship that must be proved in each case, unlike a marriage, which is a de jure relationship established in law. Common-law partners live together in a conjugal relationship without being legally married.
In Ontario, a couple is generally considered to be in a common-law relationship after living together for at least three continuous years. However, if the couple has a child together, the cohabitation period is reduced to one year.
Common-law partners in Ontario do not have the same rights as legally married spouses. They must actively establish their claim to shared property upon separation, and they do not have automatic inheritance rights. Common-law partners also do not need to meet the legal requirements of marriage or file joint tax returns.
There is no legal process for ending a common-law relationship in Canada. To end the relationship, you typically need to separate from your partner, stop living together, and annul your cohabitation agreement if you have one.
