Common Law Rights in Ontario: What You Need to Know

When Is a Relationship Common Law in Ontario?

For family law purposes in Ontario, two people are considered to be in a common law relationship (legally called ‘cohabitation’) if they have lived together continuously for at least three years, or if they have lived together in a relationship of some permanence and have a child together. Different statutes may have different definitions.

Do Common Law Partners Have Property Rights?

This is where common law and married status differ most significantly. Common law partners in Ontario do not have automatic equalization rights under the Family Law Act. There is no equivalent of the married spouse’s right to share equally in property accumulated during the relationship. Each partner generally keeps property in their own name.

Trust Claims

A common law partner may have a claim for a share of property through the law of unjust enrichment and resulting or constructive trusts. If one partner contributed money, labour, or other value to the acquisition, maintenance, or improvement of the other partner’s property, they may be able to claim a proportionate share. These claims can be complex and expensive to litigate.

Do Common Law Partners Have Spousal Support Rights?

Yes. Common law partners who meet the definition of ‘spouse’ under the Family Law Act (three years or a child together) are entitled to claim spousal support. The principles governing common law spousal support are the same as for married spouses: entitlement must first be established, and then amount and duration are determined, often using the SSAG.

What About the Matrimonial Home?

The special protections for the matrimonial home under the Family Law Act apply only to married spouses. A common law partner has no automatic right to possession of a home owned by the other partner. If you are a common law partner and you do not hold title to your shared home, you may have little or no right to remain in it after separation.

Inheritance and Common Law Partners

Common law partners in Ontario do not inherit from each other automatically under Ontario’s Succession Law Reform Act if there is no will. Unlike married spouses, common law partners have no automatic entitlement to a share of the deceased partner’s estate. It is critical for common law partners to have up-to-date wills.

Protecting Yourself as a Common Law Partner

Given the significant differences between common law and married status, common law partners should consider entering into a cohabitation agreement. This agreement can set out how property will be divided on separation, whether support will be paid, and other matters, providing much greater certainty than relying on the law.