Debunking Myths About Common-Law Relationships in Ontario
In Canada, it may be that getting married is falling out of fashion, and that simply living together is becoming the “new normal”. According to the latest Statistics Canada data (from 2021) [ADD hyperlink to: https://www.statcan.gc.ca/en/subjects-start/families_households_and_marital_status], nearly 1 in 4 Canadian couples were in common-law relationships together, representing about 22.7 percent of all couples in the country. This is a jump from the prior census (2016), where the figure was 16.7 percent.
These living-together relationships are often referred to as “common-law”, and it’s a term that gets used everywhere from news outlets and social media, to dinner-table conversations.
The Myths and Misconceptions
But did you know that a common-law relationship is actually a defined concept under Canadian law? It is not treated the same as a legal marriage, but still can carry certain rights and responsibilities.
More importantly, it’s a concept that is unfortunately surrounded by myths and misunderstandings. If you and your partner are living together (or even just considering it), here’s what you should know:
Myth 1: “If we live together for a certain number of years, we are automatically considered married.”
This is one of the most common misconceptions. In Ontario, living together does not create a legal marriage. A couple is only legally married if they go through a formal marriage ceremony recognized by law.
While some statutes give rights to people who have lived together for a certain period, this does not make the couple “married” in the formal legal sense, nor does it give them all the same rights as spouses under the Family Law Act. Instead, they are considered to be in a common-law union only.
Myth 2: “Common-law partners automatically share property the same way married couples do.”
This is false. In Ontario, married spouses benefit from a detailed property-sharing regime under the Family Law Act. When a marriage ends, they usually equalize the growth of their net worth during the marriage.
Common-law partners do not have this automatic right. Each partner keeps what is in his or her own name – unless they jointly own an asset. To make a claim to property held by the other partner, a common-law partner generally has to rely on equitable principles such as unjust enrichment, resulting trust, or constructive trust. These claims can be complex, fact-driven, and expensive to litigate.
Myth 3: “Common-law partners do not have to pay support.”
Not true. In Ontario, common-law partners may owe spousal support if they have lived together in a relationship of some permanence for at least three years, or if they have a child together and have been in a relationship of some permanence. The same factors used in marriage-based support claims – such as financial need, roles during the relationship, and economic disadvantage – apply to common-law partners.
Myth 4: “Common-law is the same across Canada.”
It is not. Each province has its own laws. Rights that exist in one province may not exist in another, and the rules for property division, support, and estate rights can vary significantly. If you previously lived in another province, do not assume Ontario’s rules are the same.
Frequently Asked Questions
- How long do we have to live together before we are considered common-law?
- The answer depends on the context. For spousal support claims under Ontario law, the requirement is generally three years of continuous cohabitation, or a shorter period if the couple has a child together. For income tax or federal benefits, the definition can differ. There is no single universal timeline.
- Do common-law partners have rights to the family home?
- Not automatically. If only one partner owns the home, the other does not have an automatic right to possession or a share of the value. However, if a partner contributed money or labour toward the home, they may have a claim based on equitable principles such as unjust enrichment, or the law of trusts.
- Do common-law partners inherit from each other if one dies without a will?
- In Ontario, the answer is no. Married spouses have automatic inheritance rights under the Succession Law Reform Act if there is no will. Common-law partners do not. If you want your partner to inherit, you must name them in your will.
- Can we protect ourselves with a cohabitation agreement?
Yes. A cohabitation agreement is a legally binding contract that allows partners to set out their financial arrangements, responsibilities, and expectations if the relationship ends. It can address support, property rights, and ownership of the home.
The Take-away
Common-law relationships are common in Ontario, but the legal rules are not always well understood. If you are living with a partner or planning to move in together, don’t rely on unverified information. Get proper legal advice to understand your rights, and protect your future.