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Common-law rights upon break-up

Region: Ontario Answer Number: 123

Unless you have signed a cohabitation agreement, common-law spouses generally have fewer legal rights than married spouses upon break-up of a relationship. Under the Ontario Family Law Act, a couple is considered to be living in a common-law relationship if they have been living together intimately for at least three years or if they have been living together for less time but they have a child together.

Rights common-law spouses do not have

There are two important rights which married spouses have if they separate which common-law spouses do not have:

  1. Common-law spouses do not each have an equal right to live in the family home.
  2. Common-law spouses do not have an automatic right to equalize their net family property acquired during their relationship.

In most cases, both the home and other property go to the person who is the owner. Each person usually keeps everything they personally own and nothing more.

Unjust Enrichment and Constructive Trust

Where one or both of the common-law spouses has made a significant contribution to the property of the other, there may arise a right in respect of property based on principals of trust or unjust enrichment. Unjust enrichment is based on the concept that one person is enriched at the expense of another person’s actions, for example if one spouse stayed home to care for the children rather than receiving income from employment outside the home. It may also arise when a couple is engaged in a joint family venture, but one partner gained an unfair share of the profits.

To successfully claim unjust enrichment, three factors must be proven:

  1. One spouse received an enrichment
  2. The other spouse has been deprived or suffered a loss because of it, and
  3. There is no legal reason for the enrichment.

A claim may be made for a constructive trust, giving one partner the right to live in the family home or the right to divide property, if:

  • the couple share custody of a child and lived together in a relationship of some permanence, or
  • one partner contributed financially to the home by paying part of the mortgage, property taxes, repairs or upkeep, and so on.

Generally speaking, the longer the relationship between unmarried cohabitees or common-law partners the more likely there is a remedy. Obtaining these rights however, usually requires hiring a lawyer and often results in going to court. In court, you must convince a judge that you made a significant contribution to the home or to the property. Division of property in a common-law relationship can be extremely complicated. It is best to consult a lawyer for advice.

Rights common-law spouses do have

Although there are some rights that married spouses have that common-law spouses do not have, common-law spouses do have some important rights under the law. These include child support, spousal support, and rights to CPP pension credits.

Custody of children and Child Support

Common-law spouses have the same rights and obligations as married spouses to care for children. This includes rights to custody of children and obligations to financially support children. If the parents cannot decide on who will have custody of the children, the courts will decide based on what is in the children’s best interest. If the parents cannot agree on child support, a court can order support payments based on the federal and provincial Guidelines.

Spousal Support

In Ontario, common-law spouses also have the same rights to spousal support as married couples, as long as they have been living together for at least three years, or if they have a child together and have been living together in a relationship of some permanence. The court will look at whether one spouse needs to be financially supported and whether the other spouse has the ability to pay. If both spouses are employed and earning a similar amount of money, the court will generally not order one spouse to support another.

Right to spouse’s CPP credits

Common-law spouses also have a right to each other’s Canada Pension Plan credits. Most people earn these credits while they are working. When you and your spouse separate, the credits earned by both of you while you were together are divided evenly. Common-law partners are also eligible for CPP survivor benefits when their partner passes away. For more information, visit the Government of Canada website.

Separation agreements

When common-law spouses separate, they can deal with all the issues of their separation by entering into a formal separation agreement. This agreement can set out how property will be divided, who the children will live with and how much child support and spousal support will be paid. Although it is possible to write your own separation agreement, you should consult a lawyer to make sure that both you and your common-law spouse understand your legal rights. A lawyer can also make sure that your separation agreement is clear, complete and legally binding.

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Determining each common-law spouse’s rights and obligations upon break-up is complex. 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. 

Axess Family Law

Hart Legal

Shulman Family Lawyers


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