There is a common myth in Ontario that common law relationships hold a similar legal status to marriages. With more Canadians in common law relationships than ever before (about a fifth of all Canadians according to the 2016 census!) it’s never been more important to understand the legal rights and implications for unmarried partners.
While marriage establishes a lot of ground rules in the eyes of the courts, common law originates from customs and judicial precedent, rather than marital statutes. Because of that, what constitutes a common law relationship is different in every province, and its legal rights are very different to those afforded to married couples by the Family Law Act.
Keep reading to learn about the important nuances of common law relationships in Ontario, including:
- What does it mean to be common law in Ontario?
- What legal rights do common law partners have?
- How are assets divided in a common law relationship?
- What happens when a common law partner dies without a will?
What does a common law relationship mean in Ontario?
In Ontario, a couple is considered common law if they meet one of 2 requirements:
- They’ve been living together in a conjugal relationship for at least 3 years.
- The couple has a child together (by birth or adoption) and have lived together for a year.
A conjugal relationship means that the couple shares a home, finances, friend groups, and an emotional and sexual relationship. This prevents long-term housemates from being considered common law spouses in the eyes of Ontario law.
How does the Family Law Act view common law couples?
When a couple gets married in Ontario, family law treats that marriage as an equal economic partnership. The Supreme Court of Canada has also ruled that these differences from common law relationships are valid because married couples are making a decision to engage in a specific type of partnership, whereas common law partners haven’t made that legal commitment. So, where married spouses may benefit from the equalisation of family property, cohabiting partners wouldn’t.
What is a common law spouse entitled to in Ontario?
Because common law relationships are viewed differently from married couples, they don’t have the same rights when it comes to property and assets. Here we’ll outline a few key similarities and differences.
Are common law partners eligible for spousal support?
Yes. Common law status entitles partners to claim spousal support. This is managed by setting out how assets will be divided and determining spousal support amounts in a cohabitation agreement or a separation agreement.
It’s important to remember though, that having a cohabitation or separation agreement isn't a substitute for a will—and it won’t cover what should happen if one partner dies.
How are common law assets divided in Ontario?
If you are in a common law relationship in Ontario, the property you bring into the relationship (plus any increase in its value) typically continues to belong completely to you. There is no automatic right to divide it or to share its value the way there is in a marriage.
Common law couples are also not legally required to split the property they acquired while they were together unless it was owned jointly.
The catch is, if you contributed to your common law partner’s property during your relationship, you may have a right to part of it. This has some important implications for home possession.
What rights does a common law partner have to their partner’s property?
In Ontario, a common law couple doesn’t have the same rights as a married couple, who share the value of the matrimonial home while they were cohabiting.
Property belongs only to the person who bought it. Common law couples also can’t divide the increase in value of the property they brought with them to the relationship.
If one partner contributed financially to their spouse’s property, they may be able to claim some of it through something called constructive trust resulting from an unjust enrichment.
A constructive trust allows common law spouses to have a share in the value of the property, even if they don’t hold legal title, so long as the courts decide that their partner was unjustly enriched at their expense.
What would constitute a constructive trust in Ontario?
Essentially, if one partner contributed to the value of the property through work or money while their spouse benefitted, the court may award a share of the property to balance things out. These circumstances could include a spouse doing unpaid work at home, working without pay for a family business, or staying home with children and doing the majority of the housework.
Outside of instances of unjust enrichment, common law couples have no rights to each other’s property.
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What rights does a common law spouse have when their partner dies in Ontario?
The major implication of being in a common law relationship in Ontario is that the couple may develop spousal support obligations to each other.
That means that while the surviving spouse isn't entitled to an inheritance or any property that wasn’t explicitly theirs, they may have the right to pursue spousal support. (More on this later.)
Are common law spouses entitled to an inheritance in Ontario?
No. Unlike in some other provinces, common law spouses don’t inherit any of their spouse’s property by default. Unless something was left to them in a will, or was shared property, family law dictates that common law partners are not entitled to an inheritance in Ontario.
Simply put, if your name isn’t on the account or you aren’t a designated beneficiary, you are not entitled to an inheritance if your common law partner dies.
Can common law partners get spousal support from an estate?
If the surviving common law spouse is considered a dependent of the deceased, they can make a claim in court to seek support from the estate. To be considered a dependent in this case, the surviving spouse has to prove that they were receiving financial support from their partner or that they had a legal right to receive financial support from them before they died.
The court will decide if they’re truly a dependent spouse, if there is a legitimate need for support, and if the deceased partner provided for them accurately.
Something to note is that anyone who appears to have a financial interest in the estate can contest a will—not just just spouses, children or those mentioned in the will, but also extended family members and those people mentioned in any previous will.
Does a common law relationship override a will in Ontario?
When a spouse dies in a marriage, the surviving spouse is considered next-of-kin. This same status, and the legal rights that come with it, isn't granted to common law spouses in Ontario.
If an unmarried common law partner dies without a will in Ontario, the surviving partner isn't considered in the legal processes that follow.
Also, wills can only be contested by spouses, children, and people mentioned in the will itself. In the eyes of Ontario courts, common law partners aren’t included in the spouse category, and don’t have the legal right to contest a will.
What happens when a common-law spouse dies without a will in Ontario?
There’s a set of legal rules called intestacy rules that determine what happens and who gets what if someone dies without a will. Like most things, these rules are different for married spouses than for common law couples.
When a common law partner dies, the surviving partner typically becomes the sole owner of any money or property they both owned jointly. For example, the money in a joint bank account or any real estate held jointly with rights of survivorship would typically become the sole property of the survivor.
The surviving spouse would also get life insurance money and registered investments if they had been named as a beneficiary on those accounts.
Unlike married spouses, when a common law spouse dies without a will, there's no automatic right to an inheritance from the estate of the deceased.
Common law partners in Ontario don’t inherit any of their spouse’s property unless it was left to them in a valid, legal will.
Without a will, their property would be distributed to their closest next-of-kin, and if there is no next-of-kin as defined by the intestacy rules, the entire estate goes to the Ontario government.
Have the final say
Without a legal will outlining your wishes, it’s possible that the people you love most will be excluded from the distribution of your assets when you die and your final wishes won’t be observed. Those dreams you shared with your brother of having a proper Viking burial will likely not be considered and your partner might not have access to the home you shared together.
The reality is, while cohabitation agreements and separation agreements can help keep complicated matters clean while you’re both alive, they don’t cover the sad and inevitable matter of what happens when one of you dies.
When it comes down to it, the myth that living common law is similar to being married in the eyes of family law can be quite damaging, and in some cases, devastating for those left behind.
Writing a will is an act of love that saves your partner and your family from extra headaches and tears while ensuring that your last wishes are carried out.
Start your will writing process for free and to guarantee your common law partner receives the assets they deserve.