Common Law Relationships

Common-law couples refer to two individuals who live together in a relationship similar to marriage, despite not being legally married. This entails sharing a residence, identifying themselves publicly as partners or spouses, and managing joint financial responsibilities such as bills. The concept of a common-law relationship encompasses scenarios with or without shared children.

While the term “spouse” is commonly associated with married couples, legal definitions also encompass unmarried partners. When two individuals cohabit without marriage, this is termed a “marriage-like relationship,” often known as a common-law relationship. After a specific duration, the law recognizes such couples as spouses.

The Parenting and Support Act (PSA), enacted on May 26, 2017, presents a unified definition of “spouse” that includes relationships commonly labeled as common-law partnerships. This definition covers couples who are not married but:

Have consistently lived together in a marriage-like relationship for a minimum of two years.
Have lived in a marriage-like relationship and share a child together.

What does common law mean in Ontario?

According to the definition outlined in Ontario’s Family Law Act, a couple is recognized as being in a common law relationship in Ontario after cohabiting continuously for a minimum of three years. However, if they share a child through birth or adoption, the requirement is reduced to one year of living together.

How is common law defined in British Columbia?

In accordance with British Columbia’s Family Law Act, a couple is deemed to be in a common law relationship in BC if they have lived together in a manner akin to marriage for at least two consecutive years. Alternatively, if their cohabitation is under two years but they share a child, they are also considered to be in a common law relationship.

While you might assume that being in a common law partnership affords you the same rights and responsibilities as legally married spouses, this is not the case. Understanding the nuances of Ontario’s common law and the distinctions between married spouses and cohabiting partners is crucial to safeguarding your interests in case the relationship ends.

With over two decades of experience representing clients, we possess a deep understanding of common law and cohabitation agreements in Ontario. Our legal team can offer valuable insights into your rights as a common law spouse or partner in areas such as Toronto, Mississauga, Markham, Oakville, Vaughan, and nearby regions in Ontario. We can protect these rights in legal matters involving property, assets, child custody, child support, and common law separation.

When does Ontario recognize you as common law?

In Ontario, Canada, individuals are considered common law partners if they have continuously lived together in a committed relationship for a period of at least three years. However, if they share a child through birth or adoption, the requirement is reduced to one year of cohabitation.

What constitutes a conjugal relationship in Canada?

In Canada, a “conjugal relationship” goes beyond a mere sexual connection. It entails sharing a home, financial responsibilities, social circles, and an emotional bond, in addition to having a sexual relationship.

Ontario Common Law & Family Property

Under the Family Law Act (FLA), marital financial gains are divided equally. The net family property is determined for both partners, and the wealthier individual pays half of the difference to the other. While there’s limited court oversight and spouses can dispose of assets aside from the matrimonial home, this property division applies exclusively to “spouses” as defined by the FLA. Consequently, only legally married spouses, not cohabiting partners, can benefit from an equalization of family property.

Although this distinction has been challenged, the Supreme Court of Canada’s ruling in Nova Scotia v Walsh maintains that the differentiation between married and cohabiting partners isn’t discriminatory, as married spouses consciously choose marriage over common law cohabitation.

Nevertheless, remedies are available in common law for cohabiting partners. Notably, the constructive trust arising from unjust enrichment (cases like Becker v Pettkus, Kerr v Baranow) permits a partner not on the property title to claim a stake in an asset, such as the matrimonial home. Thus, a partner who has primarily handled domestic responsibilities, including child care, may receive a monetary award or a constructive trust pertaining to the matrimonial home, tying their contribution to the property itself.

A spouse seeking a constructive trust order must meet four conditions:

They must demonstrate that their contribution, whether through money or labor, enriched the legal titleholder of the property.
The enrichment of the other spouse must have resulted in a corresponding loss for the contributor.
There should be no valid reason justifying the enrichment, such as a contract or gift.
There must be a connection between the contribution and the acquisition or improvement of the property.

Failure to satisfy the fourth requirement will lead to courts awarding only monetary compensation rather than the property itself. Courts typically distribute property based on the proportion of the contribution made.

Distinct Rules for the Matrimonial Home

The matrimonial home is treated differently from other assets. Regardless of which spouse holds the title, both partners have an equal right to possession according to section 19 of the Family Law Act (FLA). Even pre-marital or pre-cohabitation agreements are not binding in this context (section 52(2) FLA). The court can order exclusive possession, regardless of property ownership, often to prevent domestic violence or protect children.

In deciding exclusive possession, the court considers factors such as:

The well-being of affected children.
Existing orders for family property or support.
The financial situation of both spouses.
Any written agreements between the parties.
Availability of alternative housing.
Incidents of violence by either spouse towards the other or the children.

These rules, however, apply only to legally married spouses under Part II of the FLA. Cohabitating unmarried partners have different avenues.

Unmarried Cohabitating Spouses’ Options

Partners cohabiting for at least 3 years or in a stable relationship with a child can apply for the matrimonial home under spousal support (section 29 of the FLA).
Although not exclusive possession, a constructive trust can grant joint equitable interest and thus shared possessory rights in the home.
Interim or final restraining orders are possible if safety concerns exist for the applicant or their children.

In some cases, criminal charges can result in bail conditions that exclude the offender from the matrimonial home.

In essence, common law remedies have addressed many disparities between regulations for married and unmarried cohabitating couples.

Common Law Status in Canada

In Canada, common law status generally signifies living with someone in a conjugal relationship without legal marriage. Common law relationships are recognized in specific situations. The definition of common law status can vary in contexts like taxes, immigration, or estate planning.

How long must you cohabit to establish a common law status in Canada?

For federal tax considerations in Canada, “living common-law” pertains to couples who have lived together continuously for 12 months or have a shared child through birth or adoption. This 12-month period is also relevant for immigration purposes.

Since family law falls under provincial jurisdiction, the definition of common law varies across provinces and contexts, including estate planning. The subsequent section will detail the distinctions in common law criteria among different provinces.

What constitutes a common law relationship in my province?

The requirements for a common law relationship differ based on your specific province.

What defines a common law relationship in Alberta?

As stipulated by the Adult Interdependent Relationships Act, a common law relationship in Alberta is termed an Adult Interdependent Relationship. A couple is recognized as being in an Adult Interdependent Relationship if they have executed a valid Adult Interdependent Partner agreement together, cohabited in a mutually reliant relationship for at least three consecutive years, or cohabited with interdependence of some permanence and have a child from the relationship (by birth or adoption).

What constitutes a common law relationship in Manitoba?

According to Manitoba’s Family Property Act, a couple is considered in a common law relationship if they have officially registered their relationship with the Vital Statistics Agency or, if unregistered, have cohabited for at least three years, or one year if the couple shares a child.

How is a common law relationship defined in New Brunswick?

As outlined in New Brunswick’s Family Services Act, a couple is deemed to be in a common law relationship after cohabiting continuously for a minimum of three years or if they have a child together and maintain a relationship of some permanence.

What entitlements does a common law partner have in Canada?

Typically, in Canada, a common law partner is only entitled to what they personally own. However, a claim to property might be possible if contributions have been made to the property. This varies widely based on the unique circumstances of each couple.

But what occurs if one partner in a common law relationship passes away? This hinges on whether the partner has a valid will.

Common Law Relationships & Property Division

The Family Law Act R.S.O. 1990, c. F. 3 applies only to couples who meet the definition in s. 1(1) concerning equalization of net family property:

In this Act, “spouse” means either of two persons who,
are married to each other, or
have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)

The Act’s definition of “spouse” encompasses marriages, including those that are potentially polygamous if valid in a recognized legal jurisdiction.

So, what transpires with property acquired during a common law relationship upon separation? Ordinarily, property ownership is based on legal title, and distribution adheres to that principle. There’s no calculation of net family property or equalization payment in common law scenarios following separation. If you were or are in a common law relationship and believe you’re entitled to a share or compensation for contributions made to property acquisition, preservation, or upkeep, there are available options.

In essence, common law remedies have addressed many disparities between regulations for married and unmarried cohabitating couples.

Common Law Status in Canada

How long must you cohabit to establish a common law status in Canada?

What constitutes a common law relationship in my province?

The requirements for a common law relationship differ based on your specific province.

What defines a common law relationship in Alberta?

What constitutes a common law relationship in Manitoba?

How is a common law relationship defined in New Brunswick?

What entitlements does a common law partner have in Canada?

But what occurs if one partner in a common law relationship passes away? This hinges on whether the partner has a valid will.

Common Law Relationships & Property Division

The Family Law Act R.S.O. 1990, c. F. 3 applies only to couples who meet the definition in s. 1(1) concerning equalization of net family property:

In this Act, “spouse” means either of two persons who,
are married to each other, or
have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)

The Act’s definition of “spouse” encompasses marriages, including those that are potentially polygamous if valid in a recognized legal jurisdiction.

If you were or are in a common law relationship and believe you’re entitled to a share or compensation for contributions made to property acquisition, preservation, or upkeep, there are available options.

You have several options available in this situation:

You can discuss with your partner the reimbursement for any financial or non-financial contributions you’ve made towards the property.

If your partner doesn’t agree to reimbursement, you can take legal action and pursue one of the following claims in court:

Resulting trust
Constructive trust
Unjust enrichment

What constitutes a common law relationship varies among provinces. Here are examples for specific provinces:

In Nova Scotia, as per the Maintenance and Custody Act, a couple is recognized as common law if they live together in a marriage-like manner and publicly acknowledge themselves as partners or spouses. The duration of cohabitation can differ based on the issue at hand.

In Saskatchewan, under the Family Property Act, a common law relationship is established after living together continuously for a minimum of two years.

In Quebec, common law relationships are often referred to as “defacto unions.” In Quebec, common law status is recognized for tax purposes after cohabiting continuously for at least two years. Notably, unless legally married, a common law spouse in Quebec is entitled to nothing in case of death. More information about marital status and wills in Quebec can be found here.

Resulting Trust:

A resulting trust emerges when one person financially contributes to a property that is legally owned by another. This individual becomes the beneficial interest holder, and the presumption is that the legal titleholder is the trustee for the beneficial interest holder. Upon separation, the contributed interest is returned. This can lead to joint or sole ownership.

The Supreme Court of Canada highlighted that a resulting trust arises when a common intention, deduced from the parties’ actions or words, indicates that the beneficial interest wouldn’t belong solely to the legal titleholder, but would be shared proportionately.

Constructive Trust:

A constructive trust enables an individual to share in or acquire a property’s value despite not holding legal title. This arises when contributions, whether financial or non-financial, have enhanced the property’s value. Unlike resulting trusts, there’s no requirement for a common intention. Courts establish constructive trusts based on the principles of unjust enrichment, involving enrichment, corresponding deprivation, and no valid reason for enrichment.

Unjust Enrichment:

When other avenues are impractical, a claim of unjust enrichment can be made. This remedy addresses unfair situations where one person’s efforts result in another’s benefit. Courts apply principles of unjust enrichment to rectify this. The deprived party receives the value of their contribution, known as quantum meruit. In the context of a common law relationship, there’s a presumption that services won’t be offered without compensation.

Intestate Passing:

If you die without a will (intestate), your estate distribution follows default rules in your province. Common law spouses aren’t treated the same as legally married spouses in these cases. Therefore, to ensure your common law spouse’s protection after your death, it’s advisable to create a will naming them as a beneficiary. This not only aligns with your wishes but also reduces the stress on your loved ones.