In the Province of Ontario, common law spouses are defined as romantic partners who live together for longer than 3 years, or who have lived together and have a child together. This definition is true only in Ontario, not in the other Canadian Provinces.

Every Province, and even the Federal Government has a different definition of what makes two people a “common law couple”. That is why you might file taxes with the government of Canada as a common law spouse after having only lived together for one year, even though in Ontario you would not be considered common law until 3 years had passed, or why your spouse can add you to their benefit plan at work six months after you moved in.

Rights of Married Couples and Rights of Common Law Couples on Relationship Breakdown

Even though it may appear that being married or being in a common law relationship are identical, when separating in Ontario that is not the case. Back when the Country of Canada was being formed, the newly-established Federal and Provincial Governments divided decision-making powers among them. Certain decisions are made federally and are therefore the same across Canada, such as crimes and taxes, whereas other items are different across each Province, such as drinking age and healthcare.

This bit of history is extremely important in family law because decisions relating to marriage and divorce were granted to the Federal Government, while property and support decisions were granted to the Provincial Governments.

This means that the rights of married couples on divorce fall under the Federal Divorce Act, while the rights of common law couples on separation fall under the Provincial Family Law Act. This would not be an issue, except that the rights outlined in these two acts differ quite a bit, especially with regard to property rights for married couples as opposed to common law couples.

The Provincial Family Law Act, states that married couples are entitled to half of all property gained over the course of the relationship, regardless of whose name it is in. However, because the Provincial Act defines the term “spouse” in section 1 as two people who are married to one another, none of the property sections of the Family Law Act can be applied to a common law couple. This means that when common law spouses separate, property remains in whoever’s name it is in at the time of separation.

There are, of course, exceptions to both of these rules. Not all divorcing couples automatically share in half of the matrimonial property, and not all common law couples walk away with only those assets in their own name. As is often the case, the exceptions are complicated and lawyers are necessary.

No Entitlement to Property Division Upon Breakdown of Common Law Relationship

The Ontario Family Law Act states that married couples have an automatic entitlement to each receive half of the combined marital property upon separation. In Ontario, common law spouses do not fall under the property division sections of Family Law Act and, therefore, have no right to ask for a division of their partner’s property, nor to expect to have to share any portion of their property with their partner.

The Ontario government specifically chose to recognize that common law spouses are distinctly different from married couples and that the act of marriage is an extra step that people can choose to make if they want the right to divide property if they later separate. Only if they marry (then separate) do they have the right and obligation to share their property with their spouse.

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 get married.

When a common law relationship ends, all of the property that is in one person’s name remains their property, with no divisions or simple exceptions, the property in the other person’s name remains their property, and anything in their joint names, such as a house or bank account, is divided equally because they chose to make it equal when they acquired it by putting both names on jointly.

A common law spouse in a long-term relationship, or in other specific circumstances can make a special type of trust claim, asking the Court to grant them a portion of the other’s property, however, this is the exception to the rule and each spouse definitely needs to seek help from a Whitby family law lawyer.

Spousal Support Claims can be Made Upon Breakdown of a Common Law Relationship 

Although property division is not habitual in common law relationship breakdowns, claims for spousal support may be available. Spousal support is defined in section 33(8) of the Family Law Act. According to the Act, the purpose of spousal support is to:

8 (a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

Section 29 of the Act defines “spouse” to include both common law and married spouses. The only difference is that if you are a common law spouse, you have to have cohabited for at least three continuous years or have a child together to be eligible to claim spousal support, whereas a married spouse can claim spousal support simply by virtue of being a married spouse.

If you fear having to pay spousal support on separation, the best way to protect yourself is to have a valid Cohabitation Agreement whereby you both expressly waive your rights to any future support claims.

If you worry about receiving spousal support on separation (such as if there is an age difference between you and your spouse, and your spouse encourages you to leave work and live a more leisurely life with them), you should protect your right to receive spousal support on separation by entering into a Cohabitation Agreement.

This type of Agreement can also detail how property will be divided if you decide to own property together but only in the name of one of the spouses.

How a Matrimonial Home is Treated in Common Law Separation and Divorce

Many people may be surprised to learn that the term “Matrimonial Home” only comes into existence when people are married. The Matrimonial Home is the home where a married couple habitually resided on the date they separate.

Common law spouses cannot have a matrimonial home, as by definition, they were never married.

The home where common law spouses live together is often referred to as their family home. The property can be held in both of their names or held by one of them alone. When a common law couple separates, the property will belong to whomever holds title, i.e. whoever’s name it is in. Generally, if one person bought the house and registered it in their name alone, on separation they alone can keep it and the person who does not their name registered on the house has to move out. If the house is held in two people’s names, then they both have an equal entitlement to live there, and either one of them can force a sale of the home, but neither can force the other to move out or sell them their half.

If, as a common law spouse, you helped your partner pay the mortgage and taxes, it does not create a right to share in the ownership of the house (because you probably would have had to pay rent somewhere else).

But, if you invested your time and/or money in improving the property in renovations, painting or decorating, gardening and other aspects, or did more around the house and taking care of the children so your partner could work longer hours, that may create a right to share in some of the value of your spouse’s property, including the family home. This type of claim is called a “Constructive Trust,” and a Whitby family lawyer can help you with this legal remedy.

Common Law and How Other Property is Treated on Relationship Breakdown

As with the family home, detailed above, ownership of other property by partners in a common law relationship follows whoever’s name it is registered in. There is no automatic right to share in one another’s property. Any vehicles, bank accounts, pensions, RRSPs, investments, properties, etc. that are in your name alone, will remain yours on separation. The same thing applies to your partner’s property, as well as any debts in either of your names. Again, there are exceptions to this, however, the above remains the default rule.

There are many factors to consider when a person makes a claim to share in the property of their common law spouse. At M. G. Michaels & Associates, we represented a claimant through trial to gain an equal division of her common law spouse’s pension benefits, a trailer and certain vehicles. One of the factors that the Judge considered in awarding our client half of her spouse’s pension et cetera was that the parties had resided common law for over 30 years before separation. Another factor was that the other spouse used a joint line of credit (that our client was responsible for half of) to purchase the trailer and certain vehicles. Another factor was how the parties had behaved during their 30-year relationship that strongly suggested the plan had always been to retire together. M. G. Michaels & Associates Whitby family lawyers are not only knowledgeable, but also experienced about common law property and trust claim rights.