Today, common-law relationships are more, well, more common than ever. According to Statistics Canada, the number of couples living in common-law relationships increased by 447% between 1981 and 2021! However, despite the meteoric rise in common-law relationships, many couples need to be made aware of the legal rights and responsibilities (and, in some cases, lack thereof) that arise when in a common-law relationship.
This article will outline common-law spouse rights in Ontario, including property rights, support obligations, children’s rights, estate planning, and pensions.
What Qualifies as a Common-Law Relationship?
In Ontario, a couple is in a common-law relationship if:
- they have lived together for at least three years; or
- they have a child together and have lived together in a relationship of some permanence.
While the information above provides general guidance on what a common-law relationship looks like, keep in mind that different Ontario statutes may have different requirements for classifying whether a relationship is a “common-law” relationship.
It’s also not unheard of for parties to dispute whether they were in a common-law relationship (for instance, during separation). In these cases, the court will look to a variety of factors to determine whether the relationship in question meets common-law status, including your living arrangements, sexual and personal behaviour, social activities, economic support, and social perception of your relationship. For more information on your circumstances, speak with an experienced family law lawyer.
Common-Law Spouses and Property Rights
In Ontario, common-law spouses do not have the same property rights as married couples. Unlike married couples, who have certain protections under Ontario’s Family Law Act, RSO 1990, c F.3 when they separate, common-law spouses do not generally have property rights on separation. Instead, general property laws apply.
To that end, common-law spouses may be entitled to property (or compensation) for a property that was acquired during the relationship. For instance, if you contributed towards purchasing a home, you may be entitled to a share of the home proportionate to your contribution. Alternatively, you may be entitled to property if you made non-financial contributions to the relationship (such as raising children). Establishing your entitlement in these cases typically requires legal intervention.
If you have a cohabitation agreement (a type of agreement that outlines the entitlements and responsibilities of common-law couples upon separation), establishing property rights can become easy and inexpensive. Therefore, it’s important to consider whether a cohabitation agreement is appropriate for your relationship.
Common-Law Spouses and Spousal Support
Unlike property, common-law spouses may be entitled to spousal support upon separation. If, for instance, you made more income or had more assets than your partner, you may need to pay spousal support to help your spouse become financially independent. The inverse applies – if your separation leaves you needing financial support, and your partner can pay, you may be entitled to spousal support.
Keep in mind that spousal support is not automatic – if you do not have an agreement in place outlining spousal support obligations, you will need to either negotiate appropriate payments in a separation agreement or go to court.
For more information on spousal support, including how the amount of spousal support is calculated, visit the Ontario Government’s guide on spousal support.
Common-Law Spouses and Children
Like spousal support, common-law spouses in Ontario have the same rights to child custody, access, and support as married spouses.
Therefore, if your common-law relationship ends and children are involved, you will make arrangements for custody, access, and child support like you would if you were a married couple.
Arrangements relating to children can be addressed in a cohabitation or separation agreement. Failing agreement between the parties, child custody, access, and support may require court intervention.
Common-Law Spouses and Estate Planning
Estate planning is one area where common-law spouse rights are not automatically protected. If you have a will and estate plan, you can designate your common-law spouse as a beneficiary. However, if you die without a will, knowing that your spouse is not automatically entitled to inherit from your estate is critical.
In Ontario, the Succession Law Reform Act, RSO 1990, c. S. 26 outlines how your estate will be handled if you die without a will. While a married spouse will be the first to inherit your assets if you die without a will, a common-law spouse does not have the right to inherit from an intestate estate.
If you are in a common-law relationship and do not have a will, get one! Not only does estate planning bring peace of mind, but it’s also essential to ensure that your common-law spouse is protected if the unthinkable happens. An experienced estate lawyer can assist you with drafting your will and much more.
Common-Law Spouses and Pensions
Under the Canada Pension Plan, a surviving spouse (regardless of whether they are a married spouse or common-law spouse) is entitled to their deceased spouse’s pension. The federal government defines a common-law partner as one who has lived with their spouse for at least one year (which demonstrates the variation in what qualifies as a common-law relationship!).
Review the Government of Canada’s page regarding the survivor’s pension for more information on common-law spouse rights and pensions.
Final Thoughts on Common-Law Spouse Rights in Ontario
As noted above, common-law spouse rights are not the same as the rights of married couples. As such, common-law spouses must understand their rights in a relationship and take steps to address them.
Some valuable considerations for common-law spouses include the following:
- Understanding whether you are in a common-law relationship (keeping in mind that what qualifies as a common-law relationship can vary for different purposes)
- Considering whether, in your circumstances, marriage is an appropriate option
- Creating a cohabitation agreement that outlines each party’s respective rights and obligations in the event of a breakup
- Ensuring that your will and estate planning documents protect your spouse in the event of your death
For further guidance on navigating your rights and obligations as a common-law spouse, speak with an experienced family lawyer.
For Comprehensive and Compassionate Family Law Advice, Contact Tierney Stauffer LLP in Ottawa
The skilled family law and divorce lawyers at Tierney Stauffer LLP are passionate about helping clients navigate the complicated family law landscape after a separation or divorce. We ensure clients understand their rights, obligations, and options to empower them to make the best decision for themselves and their families. Our firm provides honest, practical legal advice that helps preserve our client’s rights and protect their interests while avoiding unnecessary and costly conflict.
To schedule a confidential consultation about your family law or divorce matter, please contact us online or call 1-888-799-8057.
