Common Law Ontario: Requirements, Property Rights, Child Support Obligations

Common law in Ontario means the couple must have been living together in a “conjugal relationship” for at least three years. That duration changes to one year if the couple are the parents of a child.

There are some misconceptions about the legal implications of the common law marriage in Ontario. As a legal matter, “common-law” relationships fall under the jurisdiction of courts in the various provinces. That means the details of what constitutes a common law relationship – and how the law treats those relationships – differ greatly from province to province in Canada.

In British Columbia, family law treats common law partners exactly the same way as married spouses. Thus, they enjoy the same rights and responsibilities as married couples. In Alberta? Law treats them as “adult interdependent partners” when they have lived together for three years or more or share parentage of a child and live together.

When Are You Considered Common Law Partners In Ontario? (2023)

As to Ontario, the legal  definition of considering a couple common law partners depends entirely on which legal rights are at issue. Each Ontario statute features subtle differences in what defines the common law marriage. Therefore, the common law partner status largely determines family law and estate law rights and obligations.

There are also very specific rights and obligations for common law status regarding property rights, unjust enrichment, constructive trusts, matrimonial homes, child support and child custody, estates, health care and what constitutes “cohabitation.” In Kerr vs Baranov the Supreme Court of Canada established that unjust enrichment will be the vehicle to address the distribution of assets on the breakdown of a common law relationship.

Ontario Family Law on Common Law Couples

Family Law Act (FLA) in Ontario grants special status for the “matrimonial home” of married couples. If the marriage ends, specific rules apply to how matrimonial home is divided. In the case of common law couples this special treatment of family property doesn’t exist at all. In practice, it means that at the end of a relationship, whoever appears on title receives the home in a judgment.

If a couple can’t come to an agreement, they can go to court and a judge can order the home sold to allow for any proceeds to be split.

Child Support & Custody

The rights and obligations in terms of child custody and child support are, however, the same for residents of Ontario regardless of their marital status as married or common law couples.

Spousal Support Obligations

The law governing spousal support in common law marriage varies depending on the province. In Ontario common-law spouses have the same rights to spousal support as the legally married. The typical amount of time the couple should live together to qualify for spousal support is three years. In addition, certain provinces have a time limit for applying for spousal support, unlike in regular marriages.

Family Property Rights & Property Division

A common law “marriage” in Ontario means you have no property rights regarding your partner’s estate. There isn’t calculated any net family property. That can cause serious problems if a partner dies without a will. This also means a partner who is not legally married could be treated as a stranger in legal terms. The provisions in FLA that govern property division apply only to married couples. In common law relationship each party takes with them only whatever property is in their name. However, couples can still make claims for constructive trust allowing them to share the value of the property, even if one does not hold legal title.

One way to prevent unfair outcomes of a romantic relationship breakdown is to create a Cohabitation Agreement that outlines the financial terms of the partnership. (The same way as prenuptial agreements function in a marriage).

Legal Requirements

When considering the issue of who is and who is not part of a common law couple, there are specific legal requirements. And they can be complicated indeed. There is one bizarre case on the books where a couple who are only dating can be considered common law in Ontario. Here are the basic questions you’ll need to answer to consider your common law status:

• Did you and your partner live together?
• What is the nature of your sexual and personal behavior?
• Did you and your partner aid and support each other the ways common to traditional family members?
• Did you and your partner act and describe yourselves as a couple?
• How did members of the community understand the nature of your relationship?
• Did you provide economical support to each other financially, did you combine your finances?
• Did you act in a “parental” way with your partner’s children? Share birth parentage?

What is a common law spouse entitled to in Ontario?

Common law spouses are entitled only to whatever they brought into or acquired during the relationship. If the couple ends the relationship, there is no automatic right to divide or share the value of property.

Reated: Do common law relationships in Ontario require divorce?

Get Legal Advice from Trusted Family Lawyers in Toronto

While this might seem like a comprehensive list of rights and obligations for common law legal issues in Toronto and Ontario as a whole, there are many subtle details to consider. If you need legal advice determining your status or working out legal issues related to common law in Toronto, the family law experts at Fine & Associates are ready to serve you. Get help in:

• common law status
• child custody & child support
• property division

Schedule a free consultation with a  common-law expert.