Area of Law: Family Law
Answer Number: 121
Common-law relationshipsRegion: Ontario Answer Number: 121
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When two people live together in a conjugal relationship and they are not married, they may be considered to be living in a “common-law” relationship. If you are living in a common-law relationship, you will have a number of rights and obligations arising under family law, tax law, social assistance and family benefits, the Canada Pension Plan and Old Age Security, and employee benefit plans. Different rules apply for each of these areas of law.
Family law issues
If you are considered to be living in a common-law relationship under family law, you may have an obligation to financially support your spouse if you separate. There are two ways for a common-law relationship to be legally created under family law:
- when two people have been living together in a conjugal relationship for three continuous years, or
- when two people have been living together in an ongoing relationship for any period and they have a child together.
Sometimes it may not be clear if two people have been living common-law. The law tries to decide whether two people have created a common-law relationship by looking at whether they cohabit. Incidents of cohabitation will include whether one person was financially supporting the other person, whether they have had a sexual relationship and whether they shared household expenses and child raising duties.
Whether a couple is considered to be in a common-law relationship is not relevant when determining child support. The laws relating to child support are the same for married couples and common-law couples. Child support is based on being a parent, legal guardian or being determined to be in loco parentis (a person having the legal responsibility to take on parental obligations).
In Ontario, property rights for those who are not legally married are not automatic. Each partner generally gets to keep the property they brought into the relationship, and joint property is shared.
Tax law issues
Under tax law, a common-law relationship legally arises when two people have been living in a conjugal relationship for 12 months or when two people have a child together. If you are considered to be a common-law spouse under tax law, you will have certain rights and obligations when you are filling out your yearly income tax return. For example, you may be able to claim a dependent spouse credit if you are financially supporting your common-law spouse.
Social assistance and family benefits issues
If you are considered to be a common-law spouse for social assistance and family benefits, you must include your common-law spouse’s income on your application for benefits. Under the social assistance and family benefits rules, a common-law relationship legally arises when two people live together as a couple for three months, and share financial responsibilities. Someone could become your common-law spouse on the day they move in with you under these rules.
Canada Pension Plan and Old Age Security
The rules regarding Canada Pension Plan (CPP) and Old Age Security (OAS) benefits for common-law spouses fall under federal law. You are considered to be living common-law for the purposes of CPP and OAS if you have been living together for at least one year.
Employee benefit plan issues
Finally, if you are considered to be a common-law spouse under your spouse’s employee benefit plan, you may be entitled to benefits such as prescription medication, life insurance and dental coverage. Employers can make their own rules for when a common-law relationship arises. Some employment benefit plans let common-law spouses share in the benefit plan if they have been living together for just six months. Others may require that spouses have lived together for one, three or five years.
An employment benefit plan that denies coverage to same-sex couples may be considered discrimination on the basis of sexual orientation and therefore unconstitutional under the Ontario Human Rights Code. It is important to note that the Human Rights Code is not applicable to matters between private parties so only government plans that exclude same-sex couples will be subject to constitutional challenges. However, in union situations, if the collective agreement contains specific provisions that prohibit discrimination on the basis of sexual orientation, exclusion of same-sex couples from the employee benefit plan would be a violation of the agreement. You should check with your personnel department for information on your employee benefit plan.
If you need additional information about how living with someone can affect your legal rights, a lawyer can give you advice based on your individual situation.
Visit the Ministry of the Attorney General for more information regarding Ontario family law.
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For legal advice and assistance regarding common-law relationships and other family law matters, contact our preferred Family Law Firms and see who’s right for you.
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