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Article written by Ron Shulman
Marriage doesn’t hold the same significance that it used to. In fact, last year more than half of Canadians surveyed in an Angus Reid Institute poll said that getting married was “not that important,” or “not at all important.”
That doesn’t mean that fewer people are finding love, instead many romantic couples making the decision to enter a common-law relationship.
Common-law relationships are those that don’t involve any sort of formal marriage ceremony. They are established once you and your partner having been living together (also referred to as cohabiting) for a length of time.
The decision to simply live together, rather than formalize your union, may on the surface, appear to be the simpler choice. However, common-law relationships can create unique challenges for you and your partner if you end up parting ways. For starters, you will need to determine if you and your partner were truly common law.
But why? Well, some aspects of Ontario Family Law draw a clear distinction between married spouses, common-law spouses, and those who are neither. Most notably, if you meet the legal test for being common-law spouses, then you could have spousal support obligations to each other if you later decide to separate.
So how can you tell if you are really common law? Here are some important details to help you better understand where you stand.
Are We “Spouses?”
Let’s begin with the definition of “spouse,” which under the Ontario Family Law Act can mean slightly different things, depending on the context.
As it relates to the home you shared during your now-ended relationship, the term “spouse” never covers the partners in a common-law relationship (or something less). For the narrow purposes of determining the right to a matrimonial home, the term is reserved for married spouses only. Unmarried partners need not apply!
But when it relates to support obligations towards each other, both common-law partners and married partners are equal under the law; the definition of “spouse” can encompass both for these purposes.
Cohabitation Is The Key
Now that we know that common-law partners can be spouses, the next question is when does that happen. Simply living together for a week, a month, or even a year will not do it.
Under the Family Law Act, there is a clear minimum: A spouse includes either a man or a woman who has “cohabited for a period of no less than three years”. The Act further defines “cohabit” to mean “to live together in a conjugal relationship, whether within or outside marriage.”
So, the requirements look something like this:
Common-law “Spouse” > Requires three years of “cohabitation” > Which involves “living together” in a conjugal relationship.
But, this changes if you have had a child together. In that case, you are considered common law if you have lived together for any length of time as long as you are in “a relationship of some permanence” and have a child together.
What Does “Living Together” Really Mean?
The concept of “living together” is surprisingly hard to pin down. Courts have had to consider different scenarios to determine when a couple meets that definition, because while cohabitation is an element of a common-law relationship, it is “not synonymous with co-residence.”[1]
As a result, the determination of common-law status can be confusing, with unexpected outcomes. As the Supreme Court of Canada summed it up in a case called Hodge v. Canada (Minister of Human Resources Development)[2]: “Two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof.”
Let’s look at some examples.
The easiest scenario is where you and your partner actually share a home full-time: This clearly meets the basic test of “living together.” The question of which of you holds title to the home, or whose name is on the lease of a rental unit, is irrelevant to that determination.
But what if you and your partner share a home part of the time, but one of you still keeps a separate home?
This was the scenario in an Ontario case.[3] The man kept a unit in a building he owned with his brother for his own use, but the evidence showed that he spent the majority of his time at the woman’s apartment and he considered it his primary residence. This still met the test for a common-law relationship. As the court reasoned: There is no legal bar to even married spouses from having multiple residences. Simply keeping another home does not disqualify a person from living common-law elsewhere – it will depend on the facts.
Note that the question of when you physically move out of your former home, and into that of your partner, is also not as clear-cut as one might imagine: You can still be declared “spouses” even if there has been no formal move-in date.
This was the conclusion in a case decided by the Court of Appeal,[4] where the court ruled there could be no “mechanical bright line test” around the concept of “moving in” since it would not add any precision to the legal concept of living together. Instead – and in light of the many variations of living arrangements – the determination will always depend on a broader, more flexible evaluation of the specific circumstances.
Can You Keep Separate Homes And Still Be “Living Together?”
A more problematic scenario is where both of you keep your own residences during the relationship, and neither of your existing homes is clearly designated as being one that you share together. This was the situation in one Ontario case[5] where the court considered whether a man and woman could meet the test of “living together” even though they kept separate residences throughout their relationship. Both of them still had their own apartments, and neither of them changed their principal addresses after they met. However, they spent a lot of time together, and there were many other indications that they considered themselves a committed couple. In deciding that they had nonetheless not been “cohabiting” before they split up, the court said:
Living together implies something more than having conjugal relations, spending time together or doing so for a long time. It cannot be defined by a simplistic accounting of days or nights spent at this or that address. It imports the concept of a common abode where both are primarily resident. That place may change from time to time depending upon the lifestyle of the couple. However, there ought to be a place readily identifiable as the place where both are ordinarily to be found most of the time when they are at “home”.
But There’s More
As mentioned above, the “living together” component is part of the definition of “cohabitation.” However the fuller requirement is that the “living together” must be in the context of a conjugal relationship. This means that a court will look at more than how often you are living under the same roof, and for how long.
Numerous elements of the couple’s interpersonal relationship will be examined, including their sexual and personal behaviour, the services provided to one another, their social activities, the perception of the community, the economic ties and supports between them, and whether there are children. There can be many elements in each general category.[6]
Conclusion
As these cases show, there are a variety of living arrangements and relationships that may qualify for common-law status. As with so many legal issues in Family Law, the outcome will always depend on your unique circumstance.
For additional information on the law pertaining to common-law arrangements, this article entitled “How long should we live together to be common law?” is an excellent resource.
[1]Naegels v. Robillard, 2019 ONSC 2662 (CanLII) <http://canlii.ca/t/j01jp>
[2]2004 SCC 65 (S.C.C.) (CanLII) at para. 42.
[3]Barrett v. Kouril Estate, 2001 CarswellOnt 3551, [2001] O.J. No. 3959 (Ont. S.C.J.), aff’d 2003 CanLII 47493. See also Stephen v. Stawecki, 2006 CanLII 20225 (ON CA).
[4]Stephen v. Stawecki, 2006 CanLII 20225 (ON CA).
[5]Stajduhar v. Wolfe, 2017 ONSC 4954, 2017 CarswellOnt 13593, 283 A.C.W.S. (3d) 134, 99 R.F.L. (7th) 401
[6]Naegels v. Robillard, 2019 ONSC 2662 (CanLII), citing Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.).