The meaning of common law in Ontario
Common Law in Ontario refers to a couple or parties who are in a committed relationship of a generally long duration, having taken on a couple-like role, but have not formalized that relationship with a civil marriage. The Ontario common law definition therefore refers to a relationship akin to marriage but falling short of actually marrying the other person and formalizing that relationship through the business of the state called marriage.
Since common law is not formalized through marriage, all associated rights and obligations of common law partner(s) are determined by law, both statutory and case law. These laws cover everything from taxation, controlling property and inheritance rights, to financial support for ex-partner(s) and child support. There are common law spouse benefits under Canada Revenue Agency taxation laws, since common law partners can file taxes as a common law couple and be subject to same income tax rate as married partners . At the provincial level, common law spouse benefits include coverage under the Ontario Family Law Act which gives common law spouses many rights of married spouses, such as rights for custody over children, division of property during the relationship and after it ends, spousal common law support, and control over property, estates, wills, inheritances and intestacy. The case law determining the rights of a common law spouse is very complex and detailed, and is largely determined by each individual case and the very specific details of the relationship in question.
Other than federal and provincial laws applicable to common law partners, there are societal forces wrought by human nature that tend to govern common law spouses, such as shared accumulation of assets, debts and liabilities, and also rights to arrange and control things such as bank accounts, cars, apartments, homes and other real estate.
As family law lawyers it is important to point out to common law spouses that even if they have been living together for years and accumulating assets, there exists a time when the relationship may end badly, and when everything one shared with the other person might become compromised by death, separation, divorce or marital breakdown, and there are always elements of risks which must be considered.
Common law partners’ legal rights
In Ontario, common law partners have similar rights and responsibilities as married spouses in many important areas of family law. However, there are notable differences when it comes to Property Rights, Inheritance Rights and also in respect of decision making for an incapable spouse.
Property Rights
Unless otherwise written into the Domestic Contract between the parties, Section 12 and 13 of the Family Law Act sets out that common law partners do not have an automatic right to equalize net financial gains obtained during the relationship. Section 20 (1) of the Partition Act provides co-owners of real property, (land), the right to partition their interest in jointly-owned property or to have it sold.
Inheritance Rights
Unlike a spouse, a common law partner is not entitled to inherit from their partner’s estate if they have not been designated as a beneficiary. There is no legal obligation on the deceased spouse to provide for the partner in their Will, therefore there is no guarantee that a common law partner will be taken care of by the deceased partner. Spousal support may be available from the estate, but is limited to 3 years or the length of the relationship, whichever is less. For real property and personal possessions, a common law partner would not have a right to claim an interest out of one half of these assets unless under Section 17 of the Succession Act 2017.
Decision Making for an Incapable Spouse
While a married spouse may apply to the court for a wellness check on the other spouse or for a temporary power of attorney, a common law spouse does not have this right. Where a common law partner is incapable and unable to make their own financial decisions and has not made a Power of Attorney for Property, a family member can apply to the court to become a guardian of property for the incapable partner. In awarding guardianship, the court will consider the best interest of the incapacitated spouse, the wishes expressed by the spouse when they were capable, and that of other members of the family.
Rules surrounding common law separation
In Ontario, there is only one distinction between common law and married spouses. That is, common law partners do not have the benefit of spousal support entitlement under Part 3 of the Family Law Act. Other than that one distinction, common law spouses and married spouses enjoy the same legal rights upon relationship breakdown.
So, since married spouses enjoy such rights and benefits of the Family Law Act, what governs the rights of common law spouses? The answer is two-fold. First, common law spouses can petition the court for a divorce pursuant to Ontario’s Divorce Act if at least one of the two spouses is habitually residing in Ontario at the time of application, but they cannot seek a divorce like married spouses do because they did not have a solemnization of marriage. Second, common law spouses enjoy the benefit of possessory rights in Ontario. Pursuant to Ontario’s Family Law Act, any property that the common law spouses own can be partitioned so the parties can live their separate lives. This process is known as a "Division of Net Family Property". Among other things, Division of Net Family Property is a process the courts use to divide the spouses’ jointly owned property, and property that the couple has owned together during their relationship. For instance, a couple that has been together for 15 years will have included within their "net family property" when they split their assets, any and every asset with the exception of items either spouse already owned prior to the relationship, any gifts or inheritances received by either party during the relationship, or anything that was gifted to the couple together. In dividing the asset, the court would most likely order sale of the property so that both spouses could take their share of the asset without having to wait for the other spouse to buy them out. Thus, the common law spouse does have family law rights in Ontario, but they are not quite the same as the rights of married spouses. Only time will tell if the separation between common law spouses and married spouses under the Family Law Act will continue.
Custody and child support for common law partners
Under the common law in Ontario, child custody and support are handled similarly to situations where spouses are legally married, with some differences and similarities in application.
For child custody, the separating parents must agree on a schedule for sharing parenting time. Typically, the parents will try to work out a parenting plan themselves, or they may be ordered by the court to attend mediation. If parents work together fairly well, they may arrive at an amicable agreement themselves, but in many cases, the court will need to be involved to resolve the matter. Courts will make decisions about custody and access according to the best interests of the child.
Child support is payable by whichever parent earns more than the other, and the amount is determined by using the Child Support Guidelines. Support amounts are determined based on the income earned by each parent, considering the amount of access time each parent has with the child. If the parents have equal access time with the child, there is typically no support paid.
In most instances, the same approaches are used whether the parents were legally married or not. The exceptions mainly occur when support for a actually goes beyond the typical child support amounts under the guidelines because there are legitimate expenses and special needs. The courts also recognize that common law spouses who have been together for long periods of time may be entitled to claim spousal support after a separation, similar to legally married spouses.
For unmarried parents, unlike with married spouses, Ontario law does not recognize a matrimonial home that is governed by equal property division upon separation. This means that if one spouse leaves the home, the non-attorney spouse typically does not get an equal share in the home or any increase in the value.
The Marriage Act in Ontario recognizes common law couples for their years of marriage, and the Family Law Act allows courts to decide the disposition of property upon separation even if spouses have never been legally married.
Spousal support obligations and legal entitlements
Both married and common law partners have a legal obligation to support each other. A common law spouse is entitled to claim spousal support from her partner pursuant to the federal Divorce Act even if the couple has never been legally married. The test for entitlement to spousal support between married and common law spouses is the same: an examination of the principle of spousal support "which recognizes that both unmarried and married spouses should be provided economic support by one another should their relationship break down." Neither of the partners need to be a resident of Ontario for this law to apply.
The courts will also conduct a review of both partners’ financial circumstances in order to determine whether one partner should provide support to the other following a separation or divorce. In its decision, the court must balance the needs of one partner with the means of the other partner .
The introduction to the Family Law Act provides a definition of a spouse within the meaning of the statute as "a person who (a) is married to the other spouse…and is not living separate and apart from the other spouse." The definition has been found to extend to a person who was not legally married but was living in a common law relationship with the other person on the date of breakdown of their cohabitation.
Both married and common law spouses have the option to make an agreement such that each spouse waives their right to seek spousal support from the other spouse. A waiver made in advance of a common or marriage and a separation agreement that waives the right to seek spousal support are both enforceable against each spouse in future litigation. This applies whether or not a separation agreement is registered in the Family Responsibility Office.
Issues, myths and misconceptions
An additional misunderstanding is the belief that by cohabiting for a stated period, rights arise automatically. The periods often mentioned in the cases are six months or one year. However, rights do not automatically arise after periods such as these, nor does the concept of getting a ‘common law divorce’ after living together for seven years apply. A party walks away from a common law relationship in Ontario with all of the property they brought into the relationship, and nothing more, unless they can demonstrate an entitlement to greater property at law. If there are young children of the relationship, there may be an obligation to pay child support. Therefore, referring to periods such as seven years before an entitlement arises is a bit of a misconception. There is no magic number when it comes to common law cohabitation.
Legal information and advice
The best time to get legal advice is before you need it. Common Law partners are encouraged to seek the advice of a family law lawyer if there is ever any question about their individual or joint rights, both during the relationship, at separation, and at death.
Partners in a common-law relationship should also consider a Cohabitation Agreement to assist in determining how property will be divided at the end of the relationship. While such an agreement will not prevent a spouse from applying for support under the Family Law Act , it will provide some degree of certainty about how property will be divided.
The following are resources available to the general public about common law rights in Ontario:
Law Society of Ontario: Free Legal Information Service
Legal Aid Ontario
Family Law Information Centre
Law Society of Ontario: Dividing Property at Separation
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