How long should we live together, to be common law in Ontario?

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 (or cohabiting) for a length of time.

If you decide to stop cohabiting and end the relationship, you may be unclear on what legal rights you have against each other. Usually there are questions about financial support and property division, and the answers can be more complicated for common-law couples than married partners. That’s because the laws governing common-law unions are different than those that relate to marriages.

1. Common Law as it Relates to Financial Support

As most people know, if you and your spouse are legally married, you have an obligation to financially support each other both during your marriage, and after you separate and divorce. The same goes if you are part of an unmarried couple – provided you and your partner have lived together continuously as a common-law couple:

• For at least three years,

or

• For any length of time as long as you are in “a relationship of some permanence” and have a child together[1]

This means that if you and your common-law partner meet either of these criteria, then under Ontario law, you are considered to be “spouses” who are obliged to financially support each other once your relationship ends.

2. Common Law as it Relates to Property Division

When it comes time to divide property, being in a common-law relationship makes things a little more complicated. Property division is dictated not so much by how long you have been living together, but rather by the nature of your relationship – and the mutual investment you each made – while you were cohabiting.

Unlike married couples, for whom the equal-division regime under the Ontario Family Law Actgoverns, unmarried partners who choose to separate have no equivalent legislation to protect them. So if you were in a common-law relationship that has now ended, you do not have the same rights as married spouses in connection with equally dividing up the property you may own. Instead, you must rely on certain legal tests that the courts will apply to your situation, to try to achieve a fair result.

The first step involves the court looking at whether you and your common-law partner have what is called a “joint family venture” together, meaning one where each of you contributed or worked towards a broader family goal.

To illustrate, let’s say you and your partner established a successful business while you were living together, but it was only made possible because you took on the childcare or household duties that allowed your partner to work long hours. Even though you do not have a legal ownership interest in the business, you may be able to ask the court to compensate you for being unable to work and earn income.  The Court can do this by either making a court Order that divides the asset more fairly, or else by awarding you money for your efforts.

To prove that a “joint family venture” existed, you must show:[2]

• Mutual effort. Did you and your partner exert mutual efforts and work collaboratively towards common goals? Did you see your relationship as being equivalent to marriage?
• Intertwined economic interest. Were your economic interests intertwined, or were you economically independent? Did you pool your resources and make joint investments?
• Did you both intend to participate in a joint family venture? Did you identify yourselves as common-law partners, for example on your income tax returns?
• To what extent was family a priority to each of you, in your decision-making? Did you both make joint decisions, such as changing jobs or moving, for the sake of the family?

Identifying that the business was joint family venture is only the first step. The second one is to satisfy the Court that there was “unjust enrichment” that served to benefit your common-law partner, while operating to your own detriment.  You must prove:

• You and your partner were in a “joint family venture” in connection with the business,
• Your contribution to that venture enriched your partner,
• Your contribution gave rise to you suffering a corresponding deprivation,
• There is no legal reason to enrich your spouse (e.g. there is no contract, inheritance or gift that gave rise to the enrichment), and
• Without a court order, your partner would otherwise keep a disproportionate share of the joint family venture’s profits.

If all of those elements have been proven, then the Court may see fit to award you monetary damages, either on a fee-for-service basis, or else by first putting a dollar-value on the joint family venture.  Or, if damages are insufficient, the Court may declare that the joint family venture is impressed with what is called a “constructive trust” in your favour.[3]

Generally speaking, the longer your common-law relationship, the more likely you may be able to succeed in establishing a constructive trust; however, this is always decided on a case-by-case basis.

3. The Bottom Line

If you are in a common-law relationship and decide to separate, your legal rights are context-specific, and much less straightforward than if you and your partner were formally married. If you find yourself in this situation, this makes it all the more important for you to get good legal advice.

[1] Under s. 19 of the Family Law Act, R.S.O. 1990, c. F.3

[2]Kerr v. Baranow, 2011 SCC 10 (CanLII)

[3]Martin v. Sansome, 2014 ONCA 14 (CanLII)