Common Law Rights Legal Services in Brampton
Common law partners in Ontario have different rights than married spouses. There is no automatic property division or inheritance without a will, but spousal support may be available after three years together or with a child, and child support rules are the same. Our Brampton lawyers explain your rights and draft a cohabitation agreement or separation agreement to protect you.
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Common-Law Partner Rights and Obligations in Ontario
Common-law couples in Ontario often wonder what their “rights” are upon separation or during the relationship, as compared to married couples. As outlined, being common-law does grant some rights similar to marriage (especially regarding support and children), but in other areas common-law partners have significantly fewer protections. Here we break down the key areas: property, support, children, and estate rights, focusing on differences between common-law partners and married spouses.
Property Rights: For married spouses, Ontario law mandates an equalization of net family property (sharing the increase in wealth during the marriage). Common-law partners do NOT have this statutory right. When a common-law relationship ends, there is no automatic division of assets – each partner keeps whatever assets are under their name alone. For example, if only one partner’s name is on the house or the car or in the bank account, that property remains theirs solely. You do not have a right to half the house just because you lived there for years as a common-law couple. This often comes as a shock to the partner who may have contributed in indirect ways.
The only way to claim a share of an asset owned by the other is to go to court and argue unjust enrichment and seek a constructive trust or monetary award (essentially asking the court to declare that, because you contributed to the value of the property or the other’s wealth, you deserve a portion of it). This is a complicated and fact-specific process – you’d need to prove contributions (financial or in-kind) that directly or indirectly enriched the other and a deprivation to yourself, with no contract or gift rationale.If you succeed, the court might order that you receive, say, X% of the house’s value or some other compensation. But it’s not guaranteed – unlike married spouses, where the law says sharing must happen, common-law property claims are an uphill battle dependent on evidence and equitable principles.
Bottom line: If you’re common-law, you have no right to an equal split of property. To protect yourself, you either have to formally co-own assets, get a cohabitation agreement that spells out property division, or be prepared to litigate via unjust enrichment (which can be costly and uncertain). On the flip side, you’re also not automatically responsible for the debts of your partner (except joint debts) like married folks might share indirectly through equalization. Each common-law partner’s debts remain their own, unless, for example, a debt was incurred jointly or one guaranteed the other’s debt.
One specific property right married spouses have is the “Matrimonial Home” right: Married spouses each have an equal right to live in the matrimonial home (the family home) regardless of ownership. A married spouse can’t sell or mortgage the home without the other’s consent, and a court can grant exclusive possession to one spouse. Common-law partners have none of those statutory rights. If the house is in one name, the other can be evicted once the relationship is over (or even before, though normally one would apply to court for an occupation rent or trust interest if they contributed). Common-law partners should consider registering on title as joint owners if they want legal security in the home. If not on title, the non-owner must rely on the owner’s goodwill or a court order via trust law to stay or to get any equity. For example, if Jane owns the house and John moves in for 5 years and they split, Jane can ask John to leave – John has no statutory right to stay. John could claim he contributed to renovations and bills and seek some compensation, but that’s after the fact.
Spousal Support Rights: Common-law partners do have rights to spousal support, provided they meet the definition of “spouse” under the law (3 years cohabitation or a child together as discussed) In that case, when they separate, the lower-income or disadvantaged partner can claim support from the higher earner, similar to a divorce scenario. The same factors apply: difference in incomes, roles played, needs and abilities, etc. So, in terms of support, a common-law spouse is almost on equal footing with a married spouse, after they hit the time threshold. The quantum and duration of support is determined by the same objectives (compensatory and need-based support) and often the Spousal Support Advisory Guidelines are used just as they are for married ex-spouses. One difference: a married spouse can technically apply for support even if the marriage was short, whereas a common-law partner has to cross that 3-year bar (unless there’s a child). But once you’re past that, support entitlement is judged by the same criteria.
It’s worth noting that common-law partners sometimes have to prove the existence of the relationship to get support. There have been cases where one partner denies they were actually cohabiting to avoid support. Courts will look at evidence of shared residence, intertwined finances, social perception as a couple, etc. But assuming it was a typical conjugal relationship meeting the test, you can ask for spousal support. If a common-law partner feels they deserve support, they must bring a claim within a reasonable time; unlike property, there’s no strict limitation period on spousal support claims under the FLA, but delay can complicate things. It’s best not to wait too long.
Child-Related Rights: Parental rights and responsibilities are identical whether you’re married or not. If you have children with your partner, being common-law or married does not change how custody (decision-making) and parenting time are decided – it’s all about best interests of the child, as discussed earlier. Both parents are recognized as guardians from birth if they are listed on the birth registration (unmarried fathers should ensure they are listed, otherwise they may have to legally establish paternity). Child support is also identical: an unmarried parent must pay the same table amount as a married one would. The law makes no distinction in the obligation: “Every parent” must support their children. So a big “right” common-law partners have is the right to seek child support from the other parent and the right to seek custody or parenting time. These are not really “spousal” rights, they are parental rights – but it’s a common-law scenario frequently.
In fact, one might say common-law parents have equal rights to married parents, but common-law spouses have fewer rights than married spouses.
Inheritances and Death: As mentioned, common-law partners have no automatic inheritance rights if one dies without a will. A married surviving spouse in Ontario would get the first $###,000 of the estate (called the preferential share, currently $350,000) and then split the remainder with children if any. A common-law surviving partner gets nothing under intestacy law – the estate would go to the deceased’s children or next of kin. The only recourse for a common-law partner left out of an estate is to file a dependant’s relief application under Part V of the Succession Law Reform Act, arguing they were a dependent (as a “spouse” which for that part includes common-law of 3 years or parent of a child) and the deceased failed to make adequate provision for them. The court can order support from the estate for the common-law partner, but this is not the same as a right to property – it’s more like a claim for continued support. They do not get property division or a spousal preferential share. Furthermore, common-law partners cannot claim the matrimonial home on death either. Married spouses can elect to either take what’s left to them in the will or the equalization share they’d get as if separated the day before death (and they have a right to stay in the matrimonial home for 60 days after death). Common-law spouses have no such election – if the house was solely the deceased’s and left to someone else in a will, the common-law partner could be out of a home unless they fight it via a trust or dependant’s claim, which is uncertain. This is why estate planning is crucial: if you’re in a committed common-law relationship, write wills naming each other as beneficiaries appropriately, and update beneficiary designations (RRSPs, life insurance, etc.) because those can pass outside a will directly to a named beneficiary.
Pension Splitting
Married spouses can split Canada Pension Plan credits that accrued during the marriage after separation or divorce. Common-law partners can also do CPP credit splitting if they lived together at least 1 year and then separated. So that is a right common-law partners have. And if one common-law partner dies, the survivor can be eligible for CPP survivor’s pension after at least 1 year cohabiting (or if child in common, even if cohab <1 year). Many workplace pension plans also treat common-law as spouses for survivor benefits (again usually requiring a minimum cohab period, often 1 or 3 years). For instance, if you were common-law and your partner was in OMERS (municipal pension), you’d likely get the survivor pension if cohabiting 3+ years or a shorter time with a child. Check specific plan rules; it’s common these days for plans to cover common-law partners.
Support Obligations
On the flip side of “rights” is obligations. A common-law partner (meeting the criteria) has many of the same obligations as a married one – notably, the obligation to pay spousal support if warranted and, as a parent, to pay child support. A common-law partner can also be held liable for debts if they co-signed or jointly incurred them (just like anyone). But unlike married couples, common-law partners don’t automatically share debt or property, which can actually be seen as a benefit in some situations – e.g., you’re not on the hook for equalizing half your wealth if your partner never worked and you separate (though they might get support). It cuts both ways.
Government Benefits
Some government programs recognize common-law status: e.g., for income tax, as mentioned, and for social benefits. If you’re receiving Ontario Works or ODSP (disability support), living common-law can affect your benefits (your partner’s income might be deemed available to you after a certain point). For EI (employment insurance) compassionate care benefits, a common-law partner is considered “family.” Immigration: a Canadian citizen can sponsor a common-law partner for immigration after 1 year cohabitation. So in many contexts, being common-law gives you similar standing as marriage.
Practical Tips for Common-Law Couples
- Cohabitation Agreement: Strongly consider making one, especially if either of you have significant assets or expect to support the other. You can outline property division (or waive it), possible support, and even how to deal with the home or other big assets if you break up. It can save a lot of uncertainty and fighting later.
- Joint Purchases: If you buy a house together, put both names on title (and figure out joint tenancy vs tenants-in-common). If one contributes more, that can be reflected in a cohab agreement or a trust declaration, but at least both will have a legal interest. Similarly, for expensive assets like cars, consider joint ownership or formalizing loans between you.
- Keep Records: If you’re the partner sacrificing or contributing to the other’s property (e.g., helping renovate their house, or pouring money into their business), keep evidence – bank transfers, receipts, etc. In case you need to make a trust claim later, this will be vital.
- Wills and Power of Attorney: Do estate planning. Don’t assume “my partner will automatically get everything.” That’s only true if you legally make it so. Both partners should have wills. Also, consider powers of attorney – if one of you is incapacitated, a married spouse is often consulted as next of kin; a common-law might be as well, but having a POA naming each other avoids any doubt or family dispute (especially if your families don’t fully accept the relationship).
- Understand Support Rights: If you separate and you might need spousal support, consult a lawyer quickly about your entitlement. There’s no limitation period in the Act, but waiting many years can make it harder. Conversely, if you might owe support, understand your exposure.
- Know the 3-Year Mark: That’s a big milestone. If you separate before 3 years and no child, neither can claim spousal support. After 3 years, that door opens. This sometimes factors into people’s decisions or strategy (though planning a breakup around a date is not exactly romantic, it is legally relevant).
- Joint Accounts: Use joint bank accounts for shared expenses – but also be cautious because once money is in a joint account, it’s legally both of yours (unless you can prove different). If you want to keep finances separate, do so clearly. If you want to show economic integration (maybe to prove how much you contributed), use a joint account and document contributions.
Summary of Key Rights for Common-Law vs Married
- Spousal Support: Yes (if 3 years cohab or child) for common-law – same criteria as married.
- Property Division: No automatic equalization for common-law – married only. Common-law must use trust law if seeking share.
- Matrimonial Home Possession: No for common-law. Married spouses have special rights.
- Child Custody/Support: Yes, exactly same for both – based on parentage and best interests.
- Inheritance (intestate): No for common-law (must be provided in will or claim as dependent); Yes for married (preferential share + intestate succession).
- CPP and Pension: Yes largely for common-law after 1 year (CPP survivor and credit split); many pensions yes after ~1-3 years.
- Tax and Benefits: Yes – after 12 months or child, you must file as common-law, affecting taxes and government benefits (e.g., combined income for credits).
- Domestic contracts: both can do cohab or marriage contracts (the content and enforceability rules are the same). A cohab agreement can later become a marriage contract if you marry
Separation process: no divorce needed for common-law – just separate. But if disputes, you may still go to family court for support or custody. Married require divorce for re-marriage and to formally end the legal marriage.