Canadian law recognizes both same sex and opposite sex common law relationships in many ways, but the laws that apply to them are not always the same as those for married couples.
Many couples choose to live together or “cohabit” without getting married. Some move in together in a casual way, while others see cohabitation as a step toward marriage. Some couples who live together for many years, make a personal choice not to formalize their relationship through marriage. For others, there may be legal obstacles that prevent marriage. For example, one person has been previously married and is not yet divorced. As these examples illustrate, cohabiting, or “common law” partners may have a variety of different expectations of their relationship.
There is no standard length of time a couple must live together in order to be considered “common law.” Various laws specify different time requirements before the relationship will be recognized. The presence of children in a relationship may also affect the length of time required. For example, for income tax purposes, couples are considered common law after one year of living together.[i] However, under Ontario’s Family Law Act,[ii] couples must live together for 3 years, or have children together, before there is any obligation on one partner to pay spousal support to the other if the relationship breaks down.[iii]
No matter how long you live with your partner, in Ontario, if you are not married, you are not automatically entitled to the same protection in regards to your family home and the property that you have acquired with your partner. This is one of the main legal differences in Ontario between married and common law relationships.
In general terms, Ontario’s Family Law Act provides that when married couples get divorced, they equally divide the value of the property they gained during the marriage. These laws do not apply to common law partners.[iv] When a common law relationship ends, each partner will usually get whatever assets and debts he or she brought into the relationship. Assets are anything you own that has value, and includes things like personal property (for example a car, furniture, or household items), savings, pension or retirement funds, and real estate. Each partner will also get whatever he or she bought or gained during the relationship. This means that whoever purchased an individual item is entitled to it. If you bought things together, you generally split the value of the item.
Similarly, whoever’s name is on a loan will be responsible for the debt. If both of your names are on the loan, the bank can pursue either of you for the money. The bank will usually choose the party who is in the best financial position, and therefore most likely to be able to pay. If you have a credit card under your partner’s account, or vice versa, the person whose name is on the account, rather than the card itself, is responsible for debt on that account.
There can be exceptions to this general rule. If you and your partner have a business together, you are usually entitled to share equally in the profits from that business. If you can show that you have contributed to property your common law partner owns, for example you have made bill or mortgage/rent payments, or done work to the home to improve its value, you may have a right to part of it. You are entitled to ask your partner to be compensated for that money.
Unlike married partners, common law partners do not have equal rights to the value of the home they live in together. A purchased home belongs to the person whose name is on the title. If you are renting your accommodation, the person whose name is on the tenancy agreement and who pays the rent is considered the tenant. If you and your partner both signed one tenancy agreement, you are likely joint tenants, which means you both have a right to stay in the unit, and you are both responsible (together and individually) for the whole rent amount. Your landlord can seek the entire rent from either of you.
If you both signed the same lease, you cannot legally keep your partner out of the unit you rent together. But, if your partner is abusive you can apply for a restraining order preventing him or her from coming near the home.[v] If your name is on the lease and you leave your rental accommodation to live somewhere else, but your partner stays, you are still responsible for the rent. You must transfer the lease into your partner’s name alone, or assign or sublet your share of the unit until the end of your lease. Speak to your landlord about this as soon as you decide to move out. [vi] You have to make sure that your name is removed from the lease, or that you are taking care of your portion of the rent. Otherwise, you may be responsible for rent owed even though you no longer live in the unit.
Note that if you live in subsidized, public, or not-for-profit housing, you are not allowed assign your unit to someone else: see information sheets on the Landlord and Tenant Board website.
For more information about tenancy issues, see the Landlord and Tenants Board’s website, or call the Board toll free at toll-free at 1-888-332-3234. Customer service representatives can provide information about theResidential Tenancies Act.
You may be able to get spousal support, even if you are not married. The Family Law Act’s provisions for spousal support do apply to unmarried couples (of both same and opposite sex), if you and your partner have cohabited continuously for 3 years or more, or you have been in a relationship of some permanence and you are the natural or adoptive parents of a child together.
If you are entitled to support for yourself or your child, in some cases, a judge may make a decision allowing you to stay in the house temporarily, even if you do not own the property or your name is not on the lease.[vii] The judge may consider factors such as the amount of support owed, if either of you have another suitable place to live, and if your partner might also owe you money for contributions made to the property (through repairs or rental or bill payments, for example).
You have the same rights as a married spouse with regard to any children you and your partner have together. You both have equal rights to custody of the children. If you cannot agree on arrangements for the children’s daily life when you separate, you can apply for custody or access. See “Applying for Child Custody” and “Child Custody and Access”, which provide information on how to apply for custody, and details on the types of access and custody arrangement and how court decides what is in best interest of the child.
You can ask for child support from your spouse even if he or she is not a biological parent to your child. Anyone who acted as a parent to the child, including a common law same or opposite sex partner, may have obligations to pay child support. More than one parent may be required to pay – such as step-parent and biological parent.
If you are considering entering or are already in a common law partnership, you may consider signing a cohabitation agreement. A cohabitation agreement is a binding domestic contract that can set out the obligations of same or opposite sex partners in a common law relationship. Couples can enter into such an agreement before moving in together, or at any time afterwards. A cohabitation agreement can set out the terms of the relationship—for example, who owns what, and what happens to items bought during the time you were together—and can specify spousal support on relationship breakdown. But a cohabitation agreement cannot decide child custody or access issues.These can only be decided upon the breakdown of the relationship.
Cohabitation agreements can protect your rights in a relationship, but they can also take them away. It is strongly recommended that you talk to a lawyer before signing one.
Often couples enter into a formal engagement before getting married. They may or may not choose to live together during their engagement. But what happens if the relationship breaks down before marriage? The law used to say that if one partner broke off the engagement, the other could sue for breach of promise of marriage. However, in Ontario, this is not allowed anymore. You may have purchased or acquired items because you thought you were getting married. Regardless of the reason for the relationship breakdown, the party who purchased the item is entitled to keep it. If the item was purchased jointly, the value of the item will be shared.[viii]
Ontario law is somewhat unclear on the matter of gifts made from one party to the other in contemplation of marriage, such as an engagement ring. Under Ontario’s Marriage Act,[ix] the giver is entitled to ask for the gift back if the engagement is terminated, even if it is the giver who ends the relationship. But often courts have applied the more traditional common law rule that the party who ends the relationship gives up the right to the ring (Marcon v. Cicchelli (1993), 47 R.F.L. (3d) 403 (Ont. Gen. Div.)). More recently, courts have found that the gift of the ring is unconditional, and that it cannot be undone if the marriage does not occur (Mastromatteo v. Dayball,  O.J. No. 1600 (Ont. Sup. Ct.)).
Any wedding presents given to the couple by third parties should be returned to the giver.
[i]“Marital Status,” online: Canada Revenue Agency <http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/prsnl-nf/mrtl-eng.html>.
[ii] RSO 1990, c. F.3.
[iii] Family Law Act, ss. 29-30.
[iv] Family Law Act, s. 5; see also the definition of “spouse” in s. 1, which includes only married couples.
[v] Berend Hovius, “The Family Home: Legal Treatment in Ontario,” (2010) 29 CFLQ 119.
[vi] “Landlords, Tenants, Occupants, and Residential Tenancies” online: Landlord Tenant Board <http://www.ltb.gov.on.ca/en/Law/STDPROD_092361.html>.
[vii] See “What You Should Know About Family Law in Ontario,” online: Ministry of the Attorney General <http://www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf>, page 16; Berend Hovius, “The Family Home: Legal Treatment in Ontario” (2010) 29 CFLQ 119; and Young-Foong v. Leong-Foong (1980), 1 FLRAC 718, 1980 CarswellOnt 87 (Ont. Master), at paras 11-12; affirmed (1980), 1 F.L.R.A.C. 718 at 721 (Ont. HC).
[viii] Julien D. Payne, Canadian Family Law, 3rd edition (Toronto: Irwin Law, 2008), pages 21-23.
[ix] RSO 1990, c. M.3