One of the first questions you’ll answer when making a will with Willful is your marital status. There are three options to choose from: married, single or common law. When answering this question, you might be wondering whether your relationship is considered common law. In this article, we explain the criteria for a common law relationship in Canada and what is considered common law in each of our active provinces.

It’s also important to understand why having a will is incredibly important if you’re in a common law relationship, since the law treats legally-married couples differently than common law spouses.

But let’s start at the beginning...

What is common law status in Canada?

In Canada, common law status typically refers to a person living with a person who you are not legally married to, but are in a conjugal relationship with. Canada recognizes common law relationships in certain situations. What constitutes common law status can vary depending on the context. For example, it can differ when it comes to taxes, immigration, or estate planning. 

How long do you have to live together to be common law in Canada?

For federal tax purposes in Canada, ‘living common-law’ refers to couples who have either been living together for 12 continuous months or who share a child by birth or adoption. The 12 month timeline also applies in the context of immigration.

Since family law falls under provincial law, the definition of common law in most other contexts are up to each individual province. This includes the definition of common law in relation to estate planning. In the following section we’ll outline the differences for common law relationships in different provinces.

What is common law in my province?

The criteria for a common law relationship differs based on the province you live in. 

What is common law in Ontario?

As defined in Ontario’s Family Law Act, a couple is considered to be in a common law relationship after living together for at least three continuous years. If they have a child together by birth or adoption, they only need to have been living together for one year.

What is common law in British Columbia?

As defined in British Columbia’s Family Law Act, a couple is considered to be in a common law relationship after living together in a marriage-like manner for at least two continuous years, or if they’ve lived together for less than two years but have a child together. 

What is common law in Alberta?

As defined in Alberta’s Adult Interdependent Relationships Act, a common law relationship is called an Adult Interdependent Relationship. A couple is considered to be in an Adult Interdependent Relationship if you have made a formal and valid Adult Interdependent Partner agreement together, have lived together in a relationship of interdependence for at least three continuous years, or have lived together in a relationship of interdependence of some permanence where there is a child of the relationship (either by birth or adoption).

What is common law in Manitoba?

As defined in Manitoba’s Family Property Act, a couple is considered to be in a common law relationship if they have registered their relationship at the Vital Statistics Agency or if not registered, have lived together for at least three years, or one year if the couple has a child together.

What is common law in New Brunswick?

As defined in New Brunswick’s Family Services Act, a couple is considered to be in a common law relationship after living together continuously for at least three years or have a child together and are in a relationship of some permanence.

What is common law in Nova Scotia?

As defined in Nova Scotia’s Maintenance and Custody Act, a couple is considered to be in a common law relationship if they live together in a marriage-like relationship and publicly refer to themselves as partners or spouses. However, how long the couple must live together can vary depending on the issue being addressed. 

What is common law in Saskatchewan?

As defined in Saskatchewan’s Family Property Act, a couple is considered to be in a common law relationship after living together continuously for at least two years.

What is common law in Quebec?

In Quebec, common law relationships are often referred to as a defacto union. You are considered common law in Quebec for tax purposes after living together continuously for at least two years. It’s very important to note that in Quebec, unless you’re legally married, your spouse will be entitled to nothing if you pass away. Learn more about marital status and wills in Quebec here.

What is a common law partner entitled to in Canada?

Typically in Canada, a common law partner is only entitled to everything they personally own. However, you may be able to make a claim to property if you’ve been contributing to the property. This can vary widely depending on each couple’s unique circumstances.

But what happens if one partner in a common law relationship passes away? This depends on if the partner has a will! 

What happens if I’m in a common law relationship and I don’t have a will? 

If you die intestate (also known as dying without a will), your estate will be distributed according to default rules in your province. Your estate includes all of your assets (anything you possess of financial or other value) and any debts. The specific rules and percentages vary from province to province, but they typically allocate to a married spouse first, then children, then other relatives.

It's important to understand that when it comes to intestacy, common law spouses are not treated the same as legally-married spouses. So if you’re in a common law relationship, your common law spouse would not have the same entitlement under these intestacy rules. They may have a claim to your estate, but that process involves filing a claim, and there’s no guarantee it will be approved – a common law spouse’s right to a share of the estate would be based on the unique facts of the situation and the judge’s discretion. It’s important to note that in Quebec, a common law spouse is always entitled to nothing. The best way to ensure a common law spouse is protected in the event of your death, is to create a will naming them as a beneficiary. By creating. a will, you will not only ensure that your estate is distributed according to our wishes, but it can also significantly reduce the amount of work and stress for your loved ones you leave behind.

Read More: Making A Will As A Couple: Should We Have a Joint Will or Mirror Will?