In Ontario, a couple is considered to be in a common-law relationship pursuant to section 29 of the Family Law Act (“FLA”), if they fulfill the following conditions:
- They are either of two persons who are not married to each other and have cohabitated…
- Continuously for a period of not less than three years OR,
- They are in a relationship of some permanence, if they are the parents of a child.
Such common-law couples can make spousal and child support claims under Part III of the FLA. Individuals in a common-law relationship may also make resulting or constructive trust claims with regard to each other’s property.
A common situation where a common-law spouse might claim a resulting trust is where they have contributed money toward the purchase of a shared home. That home might be held solely in the other partner’s name or jointly between the partners. The partner who contributed the funds toward its acquisition can make a claim that they did not intend the funds to be a gift, and that the funds should be returned to them.
In the case of a constructive trust, a party can make a claim of Joint Family Venture (pursuant to the test laid out in Kerr v. Baranow 2011 SCC 10), wherein they argue that certain assets were obtained/maintained as a result of the combined efforts of both parties during a relationship. Further, that the current legal ownership of the asset does not appropriately reflect these contributions, and would unjustly enrich one spouse over the other.
With the above support and property rights in mind, it is now important to note several rights which common-law couples DO NOT have under Ontario family law.
The Equalization Regime
Common-law couples are unlikely to be considered to be spouses under section 1 of the FLA. Per section 1 of the FLA, a spouse means either of two persons who,
- Are married to each other, or
- Have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right.
Because it is the above definition of spouse which is used for the purposes of Parts 1 and 2 of the FLA, common-law spouses are not automatically included in the equalization regime outlined in Part 1 of the FLA.
Under the regime, married spouses calculate the growth of their individual net worths, from the day they were married to the day they separated. The difference between those values is then equalized between the spouses.
As common-law spouses are not automatically included in the equalization regime, they do not have a presumptive entitlement to share in the growth of their partner’s net worth during their relationship.
What might this mean in practice? If your partner has a pension, for example, it would be presumptively included in the equalization calculation if you were married. However, if you were in a common-law relationship, you would not have a presumptive claim to share in the growth of their pension during your relationship. It is likely that the only way to claim an interest in that pension would be to make a trust claim as detailed earlier.
Remedies regarding the Matrimonial Home
Even if common-law partners bought a home together during the relationship and continued to live in it until they separate- it is unlikely to be considered to be a matrimonial home under the FLA.
Like the case of the equalization regime, this is because common-law spouses most often do not fall within the definition of spouse pursuant to section 1 of the FLA. They thereby do not have automatic access to the matrimonial home provisions in Part 2 of the FLA.
One of the most significant remedies contained in Part 2 of the FLA relates to the possession of the home. Specifically, common-law spouses will likely not benefit from section 19(1) of the FLA, which states that both married spouses have an equal right to the possession of the matrimonial home. Common-law spouses are also unlikely to be able to make a claim for exclusive possession of the matrimonial home under section 24 of the FLA.
Remedies under the Divorce Act
Common-law spouses are also unlikely to be able to access the remedies available under the Canada Divorce Act (“DA”) since they are not married, and thereby cannot seek a divorce. However, it should be noted that the provisions regarding child support and spousal support under the DA, have similar provisions available to common-law couples under the FLA.
If you would like further information and a better understanding of the remedies available to you under the FLA, or the rights that you do not have as a common-law partner, we recommend that you seek out the advice of a licensed Family Law Practitioner.