Common Law Separation in Ontario

The proceedings for Common Law Separation in Ontario are notably different from the proceedings of a traditional Matrimonial Divorce.

The latest Canadian census shows that common law relationships are the fastest growing family structure. Yet, the rights of people living together outside of marriage are unknown or misunderstood even by those who live in common law relationships. Many people assume — quite incorrectly — that people in these relationships have the same rights as married couples.

Common Law FAQ’s

What is a common law relationship?

A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same-sex or of the opposite sex. No legal formalities are required.

How long do we need to live together to be considered common law spouses?

It depends on whether the issue is federal or provincial, and in what province you live. For Ontario family law purposes, you must cohabit 3 years, or have a child and a relationship of some permanence. Federal issues include items such as federal government pensions and division of the Canada Pension Plan upon separation. Property division is determined by provincial law and each province has its own definition of what a common law spouse is.  Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months. As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.

How do the courts determine what cohabitation is?

Generally, a judge will look at the lifestyle of the parties in a common law relationship. The normal test used is the one set out in the Canadian case of Moldowich v Penttinen, which sets out the following 7 factors:

  1. Shelter – did the unmarried parties share accommodation;
  2. Sexual and Personal Behaviour – did the unmarried parties maintain an intimate interdependent relationship and were they so perceived by others;
  3. Services – did the common law couple share the traditional functions of a family;
  4. Social – did the unmarried couple portray themselves as a couple to the outside world;
  5. Societal – how were the common law partners treated by their community;
  6. Economic Support – were the unmarried parties economically interdependent;
  7. Children – did the unmarried couple see children as part of their home and interact parentally with each others’ children.

Can dating or an affair be considered cohabitation?

Sometimes, yes. It really depends on the facts of the case. For instance in the Canadian case of Thauvette v Malvon, the common law parties had a 3-year relationship. During this time, they maintained separate residences. However, the man helped the woman purchase her home, and spent 4 or 5 nights per week at her home. The court found that the man and woman were cohabiting.

“At one time during the 3 years my partner and I were in a relationship, we broke up for a few months. Are we still considered to have cohabited for 3 years?”

Maybe not – it depends on the province. The Ontario Family Law Act requires 3 years of CONTINUOUS cohabitation for there to be a common law relationship. An interruption in the 3 years can destroy that continuity. It really depends on the particular circumstances of the break-up. If you simply needed time apart and were trying to work things out, then a court will probably find that your relationship was continuous. If there was an intention by either party to end the relationship permanently at the time of the break-up, then a court will probably find that your relationship was NOT continuous.

If I live with my partner for long enough, will we be considered married?

No. There’s no such thing as common law marriage in Canada.

If I’m in a common law relationship, do I need to obtain a divorce?

No. Your relationship is over when one of you says it’s over.

Divorce for Married vs. Common Law Couples

Equalization Payment Upon Separation

Married:  Yes
Common Law: No, but may claim unjust enrichment

Possession of the Matrimonial Home Upon Separation

Married:  Yes
Common Law: No

Special Treatment of Matrimonial Home in Dividing Property

Married:  Yes
Common Law: No

Spousal Support

Married:  Yes
Common Law: Yes if lived for 3 years or are in a relationship of some permanence and have children.

Time Limit to Apply For Spousal Support

Married:  Yes
Common Law: Yes in several provinces.

Order Restraining Depletion of Property

Married:  Yes
Common Law: No but can use Rules of Civil Procedure for similar sorts of orders.

Child Support

Married:  Yes
Common Law: Yes

Child Custody

Married:  Yes
Common Law: Yes

Succession Rights in Partner Dies Intestate

Married:  Yes
Common Law: No but may be claim for unjust enrichment.

Dependent’s Relief on Death of A Partner

Married:  Yes
Common Law: Yes

Equalization Payment on Death

Married:  Yes
Common Law: No but may be claim for unjust enrichment.

Possession of Matrimonial Home on Death

Married:  Yes
Common Law: No but may be able to claim as an incident of support