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In recent years, more and more couples are choosing to live together in a common law relationship without getting legally married. When the relationship ends, it is a common misconception that common law spouses are entitled to the same rights as married spouses. Unfortunately, in Ontario, this is not the case.
Under the Family Law Act in Ontario, a “spouse” is someone who is legally married. Common law partners are therefore not considered to be “spouses” under this Act. Spouses have legal rights with respect to the division of property under this Act, which may include an “equalization payment” if one spouse has less “net family property” than the other.
However, in Ontario, if a couple is not legally married, a partner is not automatically entitled to an equalization payment if he or she has less net family property. There are situations in which a common law partner can claim an interest in property owned by the other partner, but this is a complex argument based on the facts of the relationship. In 2011 the Supreme Court of Canada reassessed the rights of common law partners regarding property division upon separation in a landmark decision called Kerr v Baranow. The Supreme Court said that if there is a “joint family venture”, then the assets acquired during the common law relationship should be fairly divided.
A common law partner may be entitled to spousal support, but this is also a complicated consideration.
Common law partners may be entitled to spousal support, but only if the relationship lasted more than 3 years or had a child together. The court will look at many other factors to determine whether a common law partner may be entitled to support, including:
- The length of the relationship
- The health of each partner
- The economic impact of the separation
- The age of each partner
- The age of any children, and whether they still live at home
- The property owned by each partner
- Ultimately, it will depend on the facts of the relationship to determine whether a claim for a division of assets or spousal support can be made, and whether that claim will be successful.
It is important to note that if you are not legally married, divorce does not apply to you and you are not required to apply for a divorce to end your relationship. If you and your partner have kept your finances and property separate, a separation will be fairly straightforward. However, if you have been in a common law partnership for many years and your assets have become intertwined, it may become more complicated. If you have any questions, you should speak with a lawyer who has experience and knowledge in family law. Jason P. Howie is a Certified Specialist in Family Law through the Law Society of Upper Canada and has years of experience handling even the most complex separations. Visit the Common Law page on this website for more information or contact Jason online or at 1-800-335-7511 today.
Click here to read the full decision in Kerr v Baranow (http://canlii.ca/t/2fs3).
