1. Common Law Relationships & You
Common Law Confusion
With nearly 4 decades of experience in family law, including roles as a family lawyer, mediator and arbitrator, I have assisted numerous couples facing the dissolution of their common law relationships through separation or end of cohabitation. Many partners lack understanding of how their rights and obligations differ from married spouses upon separation. Many partners wrongly assume their rights mirror those of married spouses under the law. This misconception can lead to unpleasant surprises if the relationship ultimately breaks down.
Gaining awareness on these issues empowers cohabiting couples to make wise choices both during their relationship and if faced with unfortunate separation.
Why More Ontario Couples are Choosing Cohabitation
Common law relationships are on the rise across Canada, with over 1.7 million cohabiting couples, according to the latest census data. Specifically, in Ontario cities like Toronto, Mississauga, Markham, Oakville, and Vaughan, there’s a significant growth, with over 18% of couples choosing cohabitation over marriage.
2. Defining Common Law Relationships
A common law relationship refers to two persons who are not married but have cohabited in an intimate, conjugal partnership for a minimum of three years or for a period of some permanence and have a child. These domestic partners share a family life and present publicly as a committed couple, but have not formally legalized their relationship by getting legally married.
Common Law Relationships vs. Marriage
Some key distinctions between cohabiting under common law versus formal marriage include:
- No legal registration – Common law couples do not obtain a marriage license or have a ceremony. Their status is based on the length of cohabitation;
- No divorce required – Common law partners can separate by simply moving out; and
- Limited automatic rights – Unmarried couples do not benefit from the same legal protections that married spouses receive by default under the law. Their rights must be actively claimed.
3. Property and Asset Division for Common Law Couples
A major area where cohabiting couples differ substantially from married spouses is in how property and assets get divided if the relationship dissolves.
Upon separation, married spouses are subject to the equalization of net family properties regime under Ontario’s Family Law Act:
- All property acquired during marriage is valued at the date of separation and date of marriage and the increase in each spouse’s net worth is equalized.
No such automatic provision exists for common law couples. The standard property law regime applies instead:
- Only assets jointly shared get divided. Title to an asset governs which spouse owns it;
- Division may depend on quantifying each partner’s contribution; and
- The non-owner partner must actively demonstrate they contributed to the acquisition, maintenance or improvement of an asset they wish to claim an interest in a particular asset.
Unmarried partners can request an unequal constructive or resulting trust, or a joint family venture to gain an interest in property registered only to their partner. But this is granted at the court’s discretion – couples cannot rely on automatic equalization.
Bottom Line – Common law couples must take proactive legal steps to protect their interest in any assets or property, legally owned by the other cohabiting spouse. Using cohabitation agreements is recommended.
“We generally advise clients to have a cohabitation agreement in place if acquiring major assets like a house or business. This avoids legal headaches down the road” – Annie Kenet, Family Lawyer, Goldhart Kenet LLP
4. Parenting and Child Support
When it comes to any children of the relationship, Ontario family law treats married and unmarried couples identically:
- Common law partners share equal rights and duties concerning child decision-making, and parenting time. Courts determine reasonable arrangements based on the child’s best interests;
- They also bear identical obligations to financially support children through child support payments in line with provincial Child Support Guidelines; and
- The primary caregiver parent can claim tax benefits like the Canada Child Benefit regardless of marital status.
The main consideration is the existence of a parent-child relationship – marital status is irrelevant in determining parenting and child support.
“My advice is that all unmarried couples with children create a formal co-parenting agreement. This avoids misunderstandings and provides helpful guidance if disputes arise later” – Michelle Sample Goldhart Kenet LLP
5. Spousal Support for Common Law Couples
In Ontario family law, the right to claim spousal support upon marital separation is well-established and presumptive based on length of marriage.
To make a successful claim, a common law spouse must prove:
- They were financially dependent on their ex-partner during the relationship; and
- They endured economic losses flowing from their role in the relationship or its dissolution.
Most common law couples separate without pursuing spousal support claims. Those who do are well advised to consult a lawyer and document financial need. Using a cohabitation agreements is also an option.
6. Cohabitation Agreements – A Must for Common Law Couples
As their rights are not automatically protected under the law, cohabitation agreements are strongly recommended for all common law couples. Key benefits include:
- Spelling out ownership and division of assets;
- Defining spousal support responsibilities if separation occurs;
- Avoiding prolonged and expensive court battles down the road; and
- Offering flexibility to customize terms as a couple sees fit.
Typical sections in a cohabitation agreement:
|Asset ownership and division||Specifies separate vs jointly owned property and proposed division|
|Spousal support||Sets out financial support obligations if relationship ends|
|Dispute resolution||Establishes mediation or arbitration process if conflicts arise|
Cohabitation agreements bring invaluable peace of mind through legal clarity. They can prevent later conflict over finances, property, and support.
7. Ending a Common Law Relationship
Dissolving a common law relationship differs somewhat from divorce between married spouses.
No complex legal process is required – unmarried couples can separate by simply moving out and living apart. However, they must still divide assets, settle child matters, arrange support, and handle other separation details.
If there are family disputes relating to the dissolution of a common law relationship, family mediation is a common alternative dispute resolution process that typically involves less time, cost, and conflict than resolving disputes through the courts. For further information relating to family mediation, see our series of articles on the topic starting with Family Mediation: Resolving Family Law Disputes – An Essential Guide or Contact Cheryl.
Key separation considerations for couples with children:
- Parenting, decision-making and support arrangements must be agreed upon or settled through court.
- Notify relevant government agencies about the change in family status.
- File taxes as separate single individuals going forward.
On the financial side, typical separation steps involve:
- Reaching an agreement on dividing property, assets, debts;
- Closing any joint accounts and credit cards;
- Changing life insurance beneficiaries, wills, powers of attorney; and
- Canceling or revising an existing cohabitation agreement.
Obtaining guidance from a family mediator often allows common law couples to negotiate fair separation terms, especially when emotions run high.
8. Working With a Family Lawyer or Mediator
Given the legal complexities around cohabitation, consulting a family lawyer or mediator is strongly advised when:
- Settling rights and obligations when forming or dissolving a common law relationship;
- Creating a customized cohabitation agreement;
- Determining parenting, decision-making and support arrangements; and
- Dividing property and finalizing separation details.
An experienced legal professional can offer invaluable tailored advice about constructive/resulting trust claims, equitable division of assets, enforcing support, and other considerations unique to your situation.
Do not presume common law confers the same rights as marriage – take proactive steps to protect your interests and those of any children involved.
If you need advice on cohabitation, common law relationships, or any family law matters, contact Cheryl Goldhart at Goldhart Kenet LLP, Family Law Lawyers. With nearly 40 years of experience, Cheryl’s compassionate and professional guidance can make a significant difference in your unique situation.
9. Further Readings and Resources
- Ontario’s Family Law Act
- Ontario Child Support Guidelines
- Property Ownership and Division for Common Law Couples
10. Final Thoughts
While cohabitation has grown enormously in Ontario, crucial distinctions from marriage remain in terms of property rights, tax implications, and more. Unmarried couples cannot rely on automatic legal protections.
Being proactive and seeking expert guidance is key to safeguarding your family and financial interests both during a common law relationship and in the unfortunate event of separation. Take the time to inform yourself on your rights and obligations.
Goldhart Mediation has extensive experience helping common law couples mediate the dissolution of their relationship. As well, as family law lawyers, Goldhart Kenet LLP can assist in creating fair agreements, separation plans, and parenting arrangements. Contact us today for compassionate legal support.
Frequently Asked Questions
1. If we decide to marry after being in a common law relationship, does our time cohabiting count towards the length of our marriage?
Yes, the time a couple lives together in a conjugal relationship before marriage can be counted toward the length of the marriage for spousal support and other purposes.
2. Are there any tax implications for common law partners in Ontario?
Common law couples don’t automatically qualify for the same tax credits and benefits that married couples receive, like the spousal tax credit. However, they can jointly report income and gain access to some credits if they meet criteria like having a child together or living together for 12 consecutive months.
3. How do common law relationships impact estate planning?
Common law partners do not automatically inherit in the absence of a will. It is important for common law couples to have proper estate planning documentation like wills, named beneficiaries, and powers of attorney to ensure their partner is protected.
4. Can common law partners jointly adopt a child in Ontario?
Yes, common law couples in Ontario can jointly adopt a child after living together for at least 3 years. The adoption process and eligibility criteria is the same as for married couples.
5. How do international jurisdictions view Ontario’s common law relationships?
It varies. Some countries recognize common law relationships formed in Ontario, while others do not recognize any Canadian common law relationship and only view married couples as spouses. It depends on local laws.
6. Are there any residency requirements to be considered common law in Ontario?
At least one partner in the common law relationship must be an Ontario resident. Non-residents can be considered common law if they have significant connections to Ontario, like owning property or paying taxes here.
7. How can common law partners protect their rights when buying property together?
They should have a cohabitation agreement detailing the percentage of ownership and division of the property on separation. Joint tenancy with the right of survivorship is also recommended to ensure the property passes to the surviving partner on death.
8. Do common law partners need to formally announce or register their relationship to be recognized?
No, there is no formal registration or announcement required. The relationship status is based on the length of uninterrupted cohabitation. However, having documentation like a cohabitation agreement or joint accounts can help prove the relationship existed if ever required.