Have you ever come across individuals who refer to themselves as being “common law” spouses? If the answer is yes, have you ever wondered what the difference is between common law spouses and married spouses? From a legal perspective, there are many key differences between these types of spouses. The purpose of this article is to explore the features of common law relationships in Canada.

What is a “Common Law” Spouse?

Before we begin, you may be wondering: what do the words “common law” mean? Under Ontario law, specifically section 29 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), individuals in Ontario are considered to be common law spouses if they satisfy either of the following requirements:

(1) the couple has cohabited together in a conjugal relationship for at least three years; OR,

(2) the couple has a child together and has lived together for at least one year.

Though the above-noted requirements specifically concern couples in Ontario, such requirements are generally used to define common law spouses across Canada.

A “conjugal relationship” means that the couple shares a home, finances, and an emotional and sexual relationship. Long-term roommates are generally not considered to be common law spouses in the eyes of Ontario law. The reason that three years is used as a cut-off in the legal definition above, is that spousal support obligations are generally triggered under Ontario law at the three year mark.

Know Your Rights as a Common Law Couple

It is important to understand that the legal rights of common law partners are not the same as the legal rights of married spouses. In common law relationships, you may be entitled to spousal support but will not be entitled to an equalization payment from your former common law partner. This means you cannot make a property claim under the FLA. You have to be legally married to make an equalization claim under the FLA.

Despite the above, common law spouses may bring claims for unjust enrichment in the relationship. For example, a common law spouse generally cannot be unjustly enriched by the other spouse’s financial contributions. The Supreme Court of Canada has established a three-part test to determine whether a common law spouse has unjustly enriched the other spouse. If all of the following requirements are established, then it is likely the court will determine that the common law spouse was unjustly enriched:

(1) an enrichment enjoyed by the spouse;

(2) a corresponding deprivation suffered by the other spouse; and,

(3) the absence of a juristic reason for the enrichment.

As an example, a common law spouse providing domestic services, including housework, may constitute unjust enrichment to the other spouse.

For common law couples, property generally belongs to the person who bought it. Contrary to married couples, common law spouses cannot divide the increase in value of property they bring with them to the relationship. Common law couples are not entitled to equalization or a division of property upon the breakdown and dissolution of the relationship. This is because common law couples are choosing not to make themselves subject to the property sharing regime that applies to married couples. Nevertheless, if one partner contributed financially to their common law spouse’s property, they may be able to claim some benefit through a constructive trust resulting from an unjust enrichment.

A constructive trust allows common law spouses to have a share in the value of the property, even if they do not hold legal title to the property. This means that a spouse who owns property actually holds part or all of the property ‘in trust’ or in care of the other spouse. The courts can grant this remedy if it decides that a common law partner was unjustly enriched at their expense.

What Would Constitute a Constructive Trust in Ontario?

If one partner contributed to the value of the property through work or money while their spouse benefitted, the court may award a share of the property to the other spouse. Such contributions may include a spouse staying home with children and doing the majority of the housework. Outside of instances of unjust enrichment, common law couples generally have no rights to each other’s property.

How to Protect Your Common Law Rights in Ontario

When you live in a common law relationship, you can separate from your spouse at any time. You do not need to get a divorce to separate because you are not married to your spouse in a common law relationship. However, with regard to child support, there is no difference between being married or not. A parent will have the same child support obligations regardless.

To protect your rights in a common law relationship, you are encouraged to get a written agreement such as a separation agreement if you and your spouse do separate. A separation agreement should address important issues such as child custody, access to your children, spousal support, child support, and common law property rights issues.

How Can Chand & Co. Assist?

It is important to understand what common law relationships are and the differences between married spouses and cohabitating partners in order to protect your legal rights.

At Chand & Co., we understand the particulars of common law relationships and cohabitation agreements in Ontario. Our team can provide helpful insight regarding your rights as a common law spouse in Ontario. We invite you to schedule a consultation with us to discuss your legal rights at 416-583-2377.

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