What is a Common Law Relationship? How is it Different from Marriage?

According to Statistics Canada, the number of Canadians choosing to live together in a common law relationship is on the rise. More than 23 per cent of Canadians are now living together without marrying—the highest percentage among the G7 countries—according to the 2021 census.

Here’s a quiz to test your knowledge of the definition of common law. In Ontario a common law spouse is defined as:

1. A partner with whom you live for one year plus a day;
2. A partner with whom you have lived for 3 years;
3. A partner with whom you file your taxes;
4. A partner who pays for 50 per cent of the bills at the home you both share;
5. All of the above; or,
6. None of the above.

The answer is B.

In the Province of Ontario, common law spouses are defined as romantic partners who live together for longer than 3 years.  The exception to that rule is those couples who have lived together for one year but also have a child together. This definition of “common law” applies to Ontario only.

Every province has a different definition of a common law couple.  Even the federal government has a different definition, namely one year of cohabitation, which is why so many people become confused.

That is why you file federal taxes with the Government of Canada as a common law spouse after having only lived together for 1 year. In contrast, you would not be considered common law until you lived together for 3 years in Ontario, or have a child together and have lived together for 1 year.

Every province, and even the federal government, has a different definition of a common law couple.

The Ontario Family Law Act states that married couples have an automatic entitlement to half of the combined marital property upon separation.

In Ontario, common law spouses do not fall under the property sections of the Family Law Act and therefore, have no automatic rights to divide their combined common law property.

The Ontario government recognizes that common law spouses are distinct from married couples and that the act of marrying is an extra step that people can choose to take which binds them and makes them subject to division of their property if the relationship fails.

The government recognizes the autonomy of two people who choose to live together in a romantic relationship, but who have decided, for whatever reason, not to marry and therefore to keep their property separate.

So, if common law spouses separate, all of the property that is in each partner’s name remains theirs, with no division.  The same is true of debts.

This, of course, does not affect property they purchased in both of their names–that will be divided by ownership.

If you are concerned about your rights or obligations as a common law partner, or are interested in discussing a Cohabitation Agreement, the family lawyers at M. G. Michaels & Associates are ready to help you and answer any questions.

Contact us at (905) 426-1476 or marie@mgmichaels.com.