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There are many misunderstandings about who is a “common law spouse” in Ontario, and what exactly this means. Many people believe that if they are in a common law relationship they have all the same rights that a married spouse has, when in reality they do not. The purpose of this article is to set out some basic information about what it means to be in a common law relationship in Ontario, in two areas of family law: (1) Division of property; and (2) Spousal support, as well as information about common law rights in both these areas of law.

What Are Common Law Rights in Ontario?

Rights Of Common Law Partners & Spouses In Division Of Property

In Ontario, the Family Law Act, RSO 1990, c F3 defines a “spouse” as someone who is legally married. When two legally married spouses separate and there is no reasonable prospect of reconciliation, the spouse who has less “net family property” is entitled to a payment from the other equal to one-half the difference between the net family properties. This is referred to as an “equalization payment”.

A spouse’s “net family property” is calculated by taking the value of all the property (except certain excluded property) the spouse owns on the date of separation, and deducting from this: (a) the spouse’s debts and other liabilities, and (b) the value of the net property the spouse owned on the date of marriage, other than the matrimonial home and debt relating to the matrimonial home. In a nutshell, both spouses calculate how much of their net worth they accumulated during the marriage, and a payment is made by one spouse to the other to equalize this amount.

Unless you are legally married, you are not entitled to an equalization of net family property in Ontario. There are situations where a common law partner can claim an interest in property legally owned by the other partner, but this is a much more complicated argument. Typically the spouse bringing the claim has to prove the other spouse would be “unjustly enriched” if his or her property is not shared. The Supreme Court of Canada in Vanesse v Seguin and Kerr v Baranow recently coined the term “joint family venture” which, if established, can be used to argue unjust enrichment. Whether or not a couple is engaged in a “joint family venture” would depend on many factors, such as whether they made mutual efforts as a couple, worked collaboratively on common goals, integrated their financial affairs, had intentions to share their property, and made decisions with the familial unit in mind.

If you are not legally married but you are cohabiting with someone in a conjugal relationship, it is important that you understand that the rights of common law partners are different than the rights of married spouses and it may be much more difficult for you to claim an interest in your partner’s property.

Common Law Spousal Support Rights

Under the section of the Family Law Act specifically dealing with spousal support, common law spouses are included in the definition of “spouse”. This means both married spouses and common law partners have the same rights and obligations under the Family Law Act when it comes to spousal support.

You are in a common law relationship according to the Family Law Act if you are not legally married but you have been cohabiting with your partner: (a) continuously for at least three years; or (b) in a relationship of some permanence, if you have a child together. To “cohabit” means to live together in a conjugal relationship, in other words, a romantic or marriage-like relationship.

Know Your Rights As A Common Law Couple

In Ontario, marriage is more than just a piece of paper. Along with a marriage comes the right to participate in a special regime of property division if your marriage breaks down.

If you are living with someone in a conjugal relationship, you need to understand that the legal rights of common law partners are not the same as a married spouse. If your relationship breaks down, you may be entitled to spousal support but you will not be entitled to an equalization payment from your former common law partner, and it will be much more difficult for you to bring a claim relating to property division.

Nadine Russell is an Associate Lawyer with our Family Law Team. If you have any questions concerning common law relationships or any other family law related matters, please contact her at [email protected] or 519-660-7838.

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