The word “spouse” carries a lot of legal weight in Ontario – but what it actually means depends entirely on which law applies to your situation. Your status as a spouse determines whether you have rights to property division, whether you can claim spousal support, and what you are entitled to if your partner dies without a will.
The short answer: in Ontario, a spouse can be a married person, a common-law partner, or a same-sex partner – but the definition shifts depending on the legal context. Not every relationship that feels like a marriage is treated the same way under the law, and the differences matter significantly.
This article breaks down how Ontario defines a spouse across three key areas: family property, spousal support, and estates.
Definition of a “Spouse” in Family Property, Support Payments, and Wills/Estates
Many people think they will qualify as a spouse since they are living or cohabitating with their partner. Yet, the definition of a “spouse” in family law will vary according to its context. Traditionally, to be a spouse, you would partake in a religious or secular marriage ceremony and be bound together as husband and wife. In modern-day, the idea of a “spouse” has evolved substantially from a “husband” or a “wife” to include a wide array of relationships. The legal definition of “spouse” has broadened to include persons in traditional marriages and partners in “marriage-like relationships.” Marriage-like relationships can be defined as common-law relationships, civil unions, cohabitation, same-sex relationships, and more.
In Canada, divorce is governed solely by the federal government. However, each province has its own law to govern the specific dealings of the relationship such as property division. The federal government and provincial government mutually govern child support and spousal support.
Understanding Who Is a Spouse in Family Law
In respect to family property in Ontario, the Family Law Act, R.S.O 1990, c. F3 (“FLA”) has differing obligations for married versus unmarried spouses. The Ontario Family Law Act contains two definitions of “spouse”, divided into sections of married spouses and unmarried spouses. Under section 1(1), the (“FLA”) of Ontario defines a “spouse” as a person who is married or entered into a marriage and will therefore be entitled to an equalization of net family property under Part I of the Act. The definition of unmarried spouses is found in section 29 of the Ontario (“FLA”), which will only apply to support obligations. The (“FLA”) of Ontario does not give automatic property rights to unmarried spouses without a shared title of the property. Accordingly, spouses in “marriage-like” relationships in Ontario will not regularly be given rights to an equalization of net family property.
Additionally, in Ontario, to determine the assets of a deceased person without a will or with a will that does not adequately deal with all the assets, the Succession Law Reform Act, R.S.O. 1990, c. (“SLRA”) sets out provisions and a framework to distribute the estate. The (“SLRA”) not only recognizes married persons as “spouses, but” it also broadens the framework in Section 57 of Part V defining a “spouse”; it includes “two persons who are not married to each other and have cohabited for a period of not less than three years.” Although the (“SLRA”) provision expands the class of people who can qualify as a spouse, they would not be entitled to spousal support claims as a dependant unless they have cohabited for three years. Consequently, the provisions in (“SLRA”) and the (“FLA”) demonstrate how the definition of a “spouse” is crucial in proceedings such as estate litigation and family property.
Married Spouses in Ontario
Married spouses receive the broadest legal protections under Ontario law. Under Section 1(1) of the Family Law Act, a “spouse” is defined as a person who is married – through a religious or civil ceremony – or who has entered into a void or voidable marriage in good faith.
Married spouses in Ontario are entitled to:
- Equalization of net family property on separation – meaning the increase in value of each spouse’s property during the marriage is divided equally
- Possession rights to the matrimonial home regardless of who holds title
- Spousal support claims under both the FLA and the Divorce Act
- Inheritance rights as a spouse under the SLRA
Divorce itself is governed by the federal Divorce Act, which applies equally across all provinces. Only married spouses can obtain a divorce in Canada.
Common-Law Spouses in Ontario
Common-law relationships are recognized in Ontario – but with important limitations compared to marriage.
For spousal support purposes, Section 29 of the Family Law Act defines a “spouse” to include a person who has lived with their partner continuously for at least three years, or who has lived together in a relationship of some permanence and has a child together.
However – and this distinction is critical – common-law spouses in Ontario do not have automatic property rights under the Family Law Act. Unlike married spouses, a common-law partner cannot claim equalization of net family property. If the property is not in your name, you generally have no automatic right to it, regardless of how long the relationship lasted.
Common-law spouses who have contributed to property may have limited remedies through trust claims – unjust enrichment or constructive trust – but these require litigation and are not guaranteed. This is one of the most significant legal differences between marriage and common-law in Ontario, and one that surprises many people.
For estates purposes, Section 57 of the SLRA recognizes a common-law partner as a “spouse” if the couple cohabited for at least three years. This means a common-law spouse may have a dependant’s support claim against an estate – but they do not automatically inherit under intestacy rules the same way a married spouse does.
How Ontario Compares to Other Provinces
Ontario’s approach to defining “spouse” is notably more restrictive on property rights for common-law couples than some other provinces.
British Columbia’s Family Law Act, SBC 2011, c. 25, defines a spouse to include anyone who has lived in a marriage-like relationship for at least two years – and B.C. common-law spouses do have property division rights equivalent to married spouses. This is a meaningful difference from Ontario.
The leading Ontario case on what makes a relationship “marriage-like” is Molodowich v. Penttinen, 1980 CanLII 1573 (ONSC). That case established a list of factors courts consider when determining whether a relationship qualifies – including shared shelter, sexual and personal conduct, services, social presentation, economic interdependence, and children. These factors are applied flexibly, not as a checklist, and courts look at the overall character of the relationship.
Ontario legislation can be contrasted with other provinces such as British Columbia (B.C.); The Family Law Act SBC 2011, c 25. declares a spouse as “A person who is married, or a person living with another person in a marriage-like relationship continuously for the last 2 years or has a baby with that person. A spouse includes a former spouse.” B.C. courts will often use the adaptable methodology in family property cases to define “spouse” in marriage-like relationships. The courts aim to honor modern legislation and the evolved concept of a “spouse.” In Weber v Leclerc 2015 BCCA, 492, the court held that partners who separated their finances and intended to stay unmarried but lived with their children were in a marriage-like relationship and thus, fulfilled the definition for “spouse.”
Depending on where you reside, the definition of “spouse” varies between provinces and their laws. Commonly, in Canada, court proceedings and litigation surrounding family property and support payments frequently arise in situations when it is indistinguishable whether persons in a “marriage-like relationship” have ended their relationship. The leading case Molodowich v Penttinen, 1980 CanLII 1573 (ONSC) (“Molodowich”) sheds light on the issue of whether a relationship is adequately marriage-like to qualify the participants as “spouses.” The Molodowhich case considers factors such as sexual and personal behavior, shelter/cohabitation, services, social life, societal expectations, economic support, and children. However, the Molodowhich factors are applied on a case-by-case basis where a marriage-like relationship is concerned. In applying Molodowhich to recent cases, the general trend in Canadian jurisprudence has been flexible, but also an important variational approach in determining the qualifications of a spouse.
This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. For legal advice, please reach out to the experienced Lawyers at Nussbaum Law.
Definition of Spouse in Family Law FAQs
What is the legal definition of a spouse in family law in Ontario?
Ontario’s Family Law Act contains two separate definitions of “spouse.” Under section 1(1), a spouse is a person who is legally married – entitling them to equalization of net family property. Under section 29, an unmarried spouse is someone who has cohabited continuously for at least three years, or who is in a relationship of some permanence with a child together – but this definition applies only to support obligations, not automatic property rights.
Does a common-law partner qualify as a spouse in Ontario?
For spousal support purposes, yes – a common-law partner who has cohabited for at least three years qualifies as a spouse under section 29 of Ontario’s Family Law Act. However, common-law partners do not have automatic rights to equalization of net family property. Without a shared title or a cohabitation agreement, an unmarried partner generally cannot claim a share of property acquired during the relationship.
How does Ontario’s definition of spouse differ from other provinces?
Definitions vary significantly across Canada. British Columbia’s Family Law Act defines a spouse as someone who is married or has lived in a marriage-like relationship for at least two years – and that definition applies to property division, unlike Ontario’s. This means a common-law partner in B.C. can claim property rights after two years of cohabitation, whereas in Ontario an unmarried partner has no automatic property entitlement regardless of how long the relationship lasted.
Does being a spouse affect inheritance rights in Ontario?
Yes. Under Ontario’s Succession Law Reform Act, the definition of spouse for estate purposes includes both married persons and those who have cohabited continuously for at least three years. This matters when a person dies without a will or with a will that does not address all assets – a qualifying spouse may have a claim against the estate as a dependant. However, cohabitation for less than three years would not meet this threshold.
How do Ontario courts decide if a relationship is “marriage-like”?
Courts apply the factors established in the landmark case Molodowich v Penttinen (1980), which examines the nature of the relationship across several dimensions: shared shelter and cohabitation, sexual and personal conduct, financial support and economic interdependence, division of household services, social presentation as a couple, and whether children are involved. These factors are assessed on a case-by-case basis, and no single factor is determinative – courts look at the relationship as a whole.
