What Are Your Rights After a Common-Law Breakup?

Every few months, a client or potential client comes to our Firm to ask some version of the same question: “We were never married.  Can’t we just split up and walk away?”

It’s a reasonable assumption. But under Ontario law, it’s an incorrect one.

Ontario doesn’t recognize “common-law marriage” – only common-law relationships, with specific definitions in play. So, if you and your partner separate after living together, you face real legal consequences around property, support, and your children – but they are different than the ones married spouses face.

Those differences catch a lot of people off guard.  Here’s what you need to know.

The Biggest Myth: Automatic Property Sharing

In contrast to those who are common-law, formally married spouses in Ontario go through what’s called “equalization of Net Family Property”. Broadly speaking, the concept is this: Any wealth the married couple has built during the marriage gets valued and then shared.  The matrimonial home is treated as a jointly owned asset, regardless of whose name is on title.

None of that applies if you were in a common-law relationship. Instead, Ontario follows the rule of absolute ownership: Property belongs to whoever rightfully owns it.

If your partner has title to the house, owns the car, or has an investment account solely in their name, then you don’t get an automatic half – no matter how long you lived together, and no matter how much you may have contributed to the household.

What If You Contributed to Property You Don’t Own?

In some cases, this focus on legal ownership can often make a separation fairly straightforward.  But sometimes a common-law relationship features an imbalance:

• Maybe your partner owns the home you shared, but you contributed to it financially or helped pay for renovations.
• Perhaps you didn’t work outside the home during the relationship, but you provided years of unpaid labour, including childcare and running the household while your partner built a business.

If this kind of imbalance was a feature of your relationship, then there may still be some equitable (fairness-based) remedies for you, under the law.

You might have a claim in unjust enrichment, or there may be a constructive trust over specific property. The Supreme Court’s decision in Kerr v. Baranow, 2011 SCC 10 remains the leading authority on these claims, and they can be significant.
Although, these fairness-based entitlements are not automatic. You have to prove your right to them, either by negotiation or through litigation in the courts.

Spousal Support is Not Off the Table – But it Works Differently

Contrary to another common assumption, common-law partners can claim spousal support in Ontario.

For support purposes, the Ontario Family Law Act defines “spouse” to include a person who:

• Has cohabited continuously for at least three years, or
• Is in a relationship of some permanence and has a child with the other person.

If you meet that threshold, support is assessed much the way it would be for a married couple.  A court will consider several factors in setting the amount and duration, including:

• The length of your relationship,
• The roles you each played during the relationship,
• The support recipient’s economic need, and
• The support payor’s ability to pay.

What Doesn’t Change: Your Children

Even though there are key differences in how the law treats married-vs.-unmarried partners, there is one area where the law is consistent: Child support and parenting arrangements.

Canadian Family law does not distinguish between married and unmarried parents; the focus is always on the child’s best interests, regardless of the parents’ marital status.  In other words, a child’s right to support, and to a relationship with both parents, doesn’t depend on a marriage certificate. The Federal Child Support Guidelines apply the same way to unmarried parents as to married ones.

Protecting Yourself

If you are in a common-law relationship – or thinking of getting into one – the single most effective thing you can do is to sign a cohabitation agreement.  Ideally, this should take place at the start of the relationship, but it can happen at any time during its course.

Simply put, a cohabitation agreement lets you decide, while things are calm, how property and support would be handled if your relationship ends.  This is far better than leaving it to an unjust enrichment claim years down the road.

If you’re already separating and didn’t have one, it’s not too late to understand and assert your respective rights.   Client misconceptions in this area are some of the most recurring themes we see at our Firm.  If you think you would benefit from clarity on your own situation, give our offices a call.