What is a common-law relationship in the eyes of Ontario family law?
There are certain criteria that need to be met for common-law relationships to be considered “legally” valid in the Province of Ontario. First, two people who have been living together for 3 or more years and are involved romantically are considered a common law couple. Deciding to live together in a marriage-like setting, sharing a home, finances, personal belongings, and friends provide the statute.
Second, the “couple” share a child or children and have been cohabitating in a familial setting for at least a year.
The rights of common law couples
The main difference between being married and living common-law is marriage is considered an economic partnership and is a binding legal agreement. There is no such legal commitment in a common law relationship.
For this article, we will look at the rights of both individuals when separating as a common law couple. We will touch on Property and the “matrimonial” home, children, spousal support, and death.
Common law relationships and their rights during a separation
Common law couples unlike their married counterparts usually require no need for legal intervention unless a child is involved. In the absence of dependants, usually, no formal agreement is necessary, and everyone departs the relationship with what they brought in.
This means no division of assets or property, except for any property that may be jointly owned such as the family home. In common law situations, the house that the family lived in during that time is usually referred to as the Family Home. Only in marriage is the term matrimonial home used. With Common-law separations, any property remains in possession of the listed owner during a separation. This means that if you are not on the title of the home that you resided in with your common-law spouse, you can be asked to leave by the owner, and they would be within their legal right to do, although this practice is frowned upon by the courts.
If you are being asked to leave your home, and wish to stay you do however have options:
- If you meet the criteria to be classified as a spouse under the Family Law Act, you may be able to apply for spousal support and as part of that support order may be granted the right to remain on the property
- In the presence of the threat of bodily harm or the fear of violence, a restraining order may be granted by the court
- In rare cases a constructive trust may be granted based on unjust enrichment or if you feel you contributed financially to the property.
Common-law relationships and children
There are some similarities between the rights of married couples and common law couples when children are involved. In the areas of decision-making responsibility and parenting time, both individuals have equal access rights to determine a co-parenting strategy that will satisfy both sides and consider the best interests of the children.
It is the legal duty of every parent to support any dependent children, to the fullest extent of their possibility. Child support is calculated similarly for married and common law couples using the Child Support Guidelines. The support claim is made under the Divorce Act for married couples and the Family Law Act for common law or unmarried couples.
Common-law relationships and spousal support
When a common law couple decides to separate, claims for spousal support may be available. Spousal support is defined by the Family Law Act. According to the Act, the purpose of spousal support is to:
(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse.
(b) share the burden of child support equitably.
(c) make fair provisions to assist the spouse to become able to contribute to his or her own support.
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
Common law relationships and inheritance
In Ontario, family law dictates common-law partners are not entitled to an inheritance from the passing partner. Unless otherwise stated by a legal will or you are designated as a beneficiary, common law spouses do have the same rights as a married partner.
In the event of a death, the surviving common-law spouse will have access to any jointly held assets. This means any assets where both spouses are listed as owners, such as bank accounts and properties. If there is no will present and no ownership titles, then there may be a recourse for spousal support from the estate if it can be proven that the surviving partner was a spouse (as defined by the Family Law Act) and dependant on the passing partner financially.
Although the Ontario laws do not require a formal separation agreement when common-law couples separate, there may be times when a formal separation agreement is necessary. If you and your common-law spouse own any property or joint assets together, a legal separation agreement is usually necessary to determine how these assets will be divided. A formal separation agreement can also help to establish a parenting plan for the children, as well as address child and spousal support.
Common-law relationships and Family Mediation
Family mediation is a great solution to settling common law disputes regarding issues relating to the children of the relationship, child or spousal support, and jointly owned property. South Simcoe Family Mediation offers a Common Law Mediation package that can help establish and clarify the rights of each common law spouse after separation.
When it’s time to go your separate ways, we can help you move forward peacefully.
Jennifer Curry - AccFM
Family Mediator at South Simcoe Family Mediation
