Many couples in Ontario choose to live together without getting married, believing that their common law relationship provides them with the same legal rights as married couples. However, Ontario law treats common law partners differently than legally married spouses, especially when it comes to property division, inheritance rights, and financial support upon separation.
Understanding the legal rights and responsibilities of common law partners is crucial for ensuring financial security and legal protection. Whether you are entering a common law in an Ontario relationship, separating from a long-term partner, or navigating estate planning, knowing your rights can help you make informed decisions.
What Is Common Law in Ontario?
A common law relationship in Ontario refers to an unmarried couple who has been living together in a marriage-like relationship for a certain period of time. While there is no formal registration for common law relationships, they are legally recognized in certain areas of family law, such as spousal support and parental responsibilities.
In Ontario, you are considered common law if:
- You have lived together in a conjugal relationship for at least three years; OR
- You have a child together and have been in a relationship of permanence (regardless of how long you have lived together).
Although common law couples may qualify for some legal rights, they do not have the same automatic protections as married spouses, particularly regarding property division and inheritance.
How Common Law Differs from Marriage in Ontario
Understanding the key differences between common law relationships and marriage is essential for making informed decisions about your legal and financial future. While both relationships involve committed partnerships, Ontario law treats them very differently in several critical areas.
| Aspect | Marriage | Common Law |
|---|---|---|
| Property Division | Equal division of matrimonial property | No automatic property rights |
| Inheritance Rights | Automatic inheritance without will | No inheritance rights without will |
| Estate Claims | Automatic dependant’s relief claims | Must prove dependency in court |
| Tax Benefits | Full spousal tax benefits | Limited tax recognition |
| Separation Process | Requires legal divorce proceedings | No formal separation required |
| Family Home | Equal rights regardless of ownership | Rights based on legal ownership only |
Key Differences Include:
- Legal Registration: Marriage requires a legal ceremony and registration, while common law relationships are recognized based on cohabitation duration and circumstances
- Automatic Protections: Married spouses receive immediate legal protections, while common law partners must often prove their entitlements
- Financial Security: Marriage provides stronger financial safety nets through automatic property division and inheritance rights
- Separation Complexity: Divorce involves formal legal proceedings, while common law separation can be informal but may require complex property claims
Legal Rights of Common Law Partners in Ontario
While common law relationships provide certain legal protections, they differ significantly from marriage when it comes to property ownership, estate rights, and separation laws.
Property Division for Common Law Ontario Couples
Unlike married spouses, common law partners are not entitled to equal property division upon separation. Instead, property rights are based on ownership. If one partner owns a home or assets solely in their name, the other partner has no automatic legal claim to those assets, regardless of how long they lived together.
- Property remains with the legal owner – Assets remain in the name of the person who purchased them unless the other partner can prove they contributed financially or in other meaningful ways.
- No automatic right to half of the family home – Unlike married spouses, common law partners do not have equal rights to the matrimonial home upon separation. If the home is owned by one partner, the other may be required to leave unless they can prove a financial interest.
- Constructive trust and unjust enrichment claims – A partner who contributed to a property financially or through unpaid labour (e.g., home renovations, mortgage payments) may make a constructive trust or unjust enrichment claim to seek compensation.
Given these differences, cohabitation agreements are strongly recommended for common law couples to protect their financial interests.
Resulting Trust, Constructive Trust & Unjust Enrichment Claims
When common law relationships end, partners may need to pursue legal remedies to recover their fair share of assets. Ontario courts recognize three primary legal theories to address property disputes:
Resulting Trust Claims
What It Is: A resulting trust arises when one partner contributes money toward the purchase or improvement of property but is not listed as the legal owner.
Requirements for Success:
- Direct financial contribution to property acquisition
- Clear evidence of monetary investment
- Intention that contribution would create ownership interest
- Documentation of payments (bank records, receipts)
Common Examples:
- Down payment contributions for a home
- Mortgage payment assistance
- Major renovation investments
- Property tax or insurance payments
Constructive Trust Claims
What It Is: A constructive trust is imposed by courts when one partner has been unjustly deprived of property rights despite making significant contributions to the relationship.
Key Elements:
- Unjust enrichment of one partner
- Corresponding deprivation of the other partner
- Absence of juristic reason for the enrichment
- Significant non-financial contributions
Qualifying Contributions:
- Homemaking and childcare services
- Support of partner’s career or education
- Labour on property improvements
- Business assistance without compensation
Unjust Enrichment Claims
What It Is: This remedy addresses situations where one partner benefits unfairly at the expense of the other partner’s contributions or sacrifices.
Calculating Compensation:
- Monetary Restitution: Direct financial contributions plus interest
- Value Survived: Proportional share based on contribution to asset value
- Joint Family Venture: Share of assets accumulated during relationship
Spousal Support in Common Law Relationships
Under Ontario law, common law partners may be entitled to spousal support if they have lived together for at least three years or have a child together and are in a relationship of permanence. The right to spousal support depends on factors such as:
- The length of the relationship
- The financial dependence of one partner on the other
- Contributions made during the relationship (e.g., caregiving, household support)
- Income disparity between partners
Unlike property division, spousal support rights mirror those of married couples, ensuring financial protection for a lower-earning partner after separation.
Parental Rights and Child Custody
Common law parents in Ontario have the same parental rights and responsibilities as married couples. This includes:
- Decision-making responsibility (custody) – Both parents have equal rights to make major decisions about the child’s upbringing.
- Parenting time (access/visitation) – Courts prioritize the best interests of the child when determining parenting arrangements.
- Child support obligations – The parent with a higher income or less parenting time may be required to pay child support, following Ontario’s Child Support Guidelines.
Even if a child was born outside of marriage, both parents have equal obligations under Ontario family law.
Tax Implications of Common Law Status in Ontario
Common law status affects your tax obligations and benefits under both federal and provincial tax laws. Understanding these implications is crucial for proper tax planning and compliance.
Federal Tax Recognition
Canada Revenue Agency (CRA) Requirements:
- Living together for 12 consecutive months in a conjugal relationship, OR
- Having a child together and living in a relationship of some permanence
- Must report common law status on tax returns
Available Tax Benefits:
- Spousal tax credit for lower-income partner
- Transfer of unused tax credits between partners
- Pension income splitting opportunities
- Combined medical expense claims
- Equivalent-to-spouse credit (if applicable)
Provincial Tax Considerations
Ontario-Specific Benefits:
- Ontario Trillium Benefit calculations based on combined income
- Property tax deferrals for seniors
- Ontario Health Insurance Plan (OHIP) family coverage
- Legal Aid Ontario eligibility based on household income
Tax Planning Strategies
Income Splitting Opportunities:
- Pension income splitting (age 65+)
- RRSP spousal contributions
- Attribution rule planning
- Business income allocation
Important Tax Deadlines:
- Status Changes: Report within 30 days of becoming common law
- Separation: Notify CRA by December 31st of separation year
- Benefit Adjustments: Update Canada Child Benefit and GST/HST credit information
Inheritance and Survivor Benefits for Common Law Partners
Unlike married spouses, common law partners face significant challenges when it comes to inheritance rights and survivor benefits. Understanding these limitations is essential for proper financial planning.
Estate Planning for Common Law Partners
Common law spouses do not automatically inherit their partner’s estate if they die without a will. To ensure financial security, common law partners should:
- Draft a will specifying their partner as a beneficiary
- Update beneficiary designations on pensions, life insurance, and RRSPs
- Consider a power of attorney for health and financial decisions
Without proper estate planning, a common law partner may receive nothing upon their spouse’s death, as Ontario law prioritizes blood relatives over unmarried partners.
How to Protect Your Legal Rights as a Common Law Partner
A cohabitation agreement is a legally binding contract that outlines financial arrangements, property division, and spousal support terms in case of separation. This agreement can:
- Clarify property ownership and financial contributions
- Protect one partner from financial loss
- Define spousal support obligations (if any)
- Reduce legal disputes in the event of a breakup
Having a cohabitation agreement can prevent misunderstandings and protect both partners from legal and financial uncertainty.
Estate Planning for Common Law Partners
Common law spouses do not automatically inherit their partner’s estate if they die without a will. To ensure financial security, common law partners should:
- Draft a will specifying their partner as a beneficiary
- Update beneficiary designations on pensions, life insurance, and RRSPs
- Consider a power of attorney for health and financial decisions
Without proper estate planning, a common law partner may receive nothing upon their spouse’s death, as Ontario law prioritizes blood relatives over unmarried partners.
Seek Legal Advice Before Separation
If a common law relationship ends, separation laws differ from divorce laws. Seeking legal advice ensures that both partners understand their financial and parental rights. A family lawyer can assist with:
- Spousal support claims
- Child custody arrangements
- Unjust enrichment claims for property
- Negotiating fair financial settlements
Since Ontario law does not automatically divide assets for common law couples, legal assistance can help ensure a fair resolution.
What Happens If a Common Law Partner Dies Without a Will?
Unlike married spouses, common law partners do not have automatic inheritance rights if their partner dies without a valid will. Under Ontario’s Succession Law Reform Act, assets are distributed to biological family members, meaning that a surviving common law spouse may receive nothing.
To protect a common law partner’s financial future, estate planning should include:
- A legally valid will that names the common law partner as a beneficiary
- Joint ownership of major assets, such as property and bank accounts
- Life insurance policies or trusts providing financial security for the surviving partner
Failing to plan ahead can leave surviving common law spouses without legal recourse, forcing them to file costly estate claims to receive financial support.
Separation Process for Common Law Couples
The separation process for common law couples differs significantly from divorce proceedings. Understanding the proper steps can help protect your legal and financial interests.
Immediate Steps Upon Separation
Financial Protection Measures:
- Separate bank accounts immediately
- Document all shared assets and debts
- Cancel joint credit cards and accounts
- Secure important financial documents
- Take photographs of valuable property
- Change passwords on online accounts
Legal Documentation:
- Record the official separation date
- Compile evidence of relationship duration
- Gather proof of financial contributions
- Collect documentation of shared responsibilities
- Preserve communication records
Resolving Financial Matters
Property Division Options:
- Negotiated Settlement
- Direct negotiation between partners
- Mediation services
- Collaborative law process
- Arbitration
- Court Applications
- Unjust enrichment claims
- Constructive trust applications
- Resulting trust claims
- Spousal support applications
Timeline for Legal Action:
- No limitation period for property claims during cohabitation
- Two-year limitation for claims after separation
- Spousal support applications have no limitation period
- Act quickly to preserve evidence and protect interests
FAQs About Common Law in Ontario
Do common law partners have the same rights as married couples?
No, common law partners do not have the same rights as married couples in Ontario. While they share some similarities, key differences include:
Similar Rights:
- Spousal support eligibility
- Parental rights and responsibilities
- Some tax benefits and credits
- CPP survivor benefits
Different Rights:
- No automatic property division
- No inheritance rights without a will
- Limited estate claims
- No matrimonial home protections
Can Common Law Partners File for Divorce?
Since common law partners are not legally married, they do not need to file for divorce in Ontario. However, they must still legally separate and resolve financial and parenting matters. Unlike married spouses, they cannot apply for equalization of net family property, but they may seek:
- Spousal support if eligible
- Parenting agreements for child custody and support
- Unjust enrichment claims to seek compensation for financial contributions
Common law partners do not need a court order to separate, but legal agreements can help protect both parties from disputes.
Do You Need Legal Assistance With Common Law in Ontario?
While common law partners enjoy some legal protections, they do not have the same rights as married couples, particularly in property division and estate planning. It is essential for common law partners to understand their legal rights, draft cohabitation agreements, and plan for financial security.
If you are in a common law relationship in Ontario and need assistance with property division, spousal support, parenting rights, power of attorney, or estate planning, consulting an experienced family lawyer is highly recommended. Legal guidance can help you protect your assets, clarify financial responsibilities, and prepare for the future.
For expert legal advice on common law rights in Ontario, contact Nussbaum Law today. Our family law team is here to help you navigate the legal complexities of common law relationships and separations.
