In Ontario, common law couples do not have the same obligations and rights as married couples. As such, it is important to be aware and understand how to best protect yourself in the event that there is a breakdown in your relationship.
To be considered common law, two people must be continuously living together in a conjugal relationship for at least a period of three years. In the event that the couple has a child, by birth or by adoption, together, then they only need to have been continuously living together in a conjugal relationship for one year.
Under the Family Law Act, married spouses are entitled to certain rights and obligations that cohabiting spouses may not benefit from, including disposition of assets and equal division of financial gains. Who is considered a “spouse” is defined in s. 1 of the Family Law Act and does not apply to cohabiting spouses.
There are, however, several remedies available for common law spouses that can help either spouse to gain a right to property in a particular asset and either be awarded a monetary award or a constructive trust that has resulted from unjust enrichment.
In respect to the matrimonial home, the Family Law Act gives spouses who are married equal rights to possession. However, the legislation protects possessory rights in the matrimonial home to prevent domestic violence or for mediation to protect children. While these possessory rights are not afforded to common law couples, they are able to apply for the matrimonial home as part of spousal support.
In addition, the courts may grant a constructive trust for a cohabiting spouse, giving them a joint equitable interest in the home, which gives them joint possessory rights in the home.
Lastly, the court may decide, depending on the circumstances to make an interim or final restraining order against a former spouse or partner who was cohabitating with the applicant. Or, if there is a criminal charge, may exclude the cohabitant from the matrimonial home altogether.
Division of Assets
Unlike in cases where there is a breakdown in the relationship between married spouses, the Family Law Act does not protect common law spouses in respect to net family property. If property is acquired during the common law relationship, that property is owned by the individual who holds legal title to the property. There is no automatic equalization of net family property in the event that there is a breakdown in the relationship and common law spouses are required to make property claims on a different basis.