Common Law Ontario
The definition of what is common law in Ontario depends on what legal right is at issue. Each Ontario statute defines common law differently, so you could be considered common law for one purpose and not for another. In this article, I look at what family law and estate law rights and obligations a common law partner has. If the article doesn’t answer your question, please feel free to ask for more information in the comments.
Spousal Support (Alimony)
In Ontario, spousal support (also known as alimony) is only payable to a “spouse.” A spouse can be a common law partner, so living together with someone can eventually give rise to an obligation to pay spousal support, even if you are not married.
In Ontario you are considered to be a “spouse” once you marry. If you and your partner are living common law, then you will be considered a spouse for spousal support purposes if you and your partner have cohabited for three years; or if you and your partner live in a relationship of permanence and have a child together. Section 29 of the Family Law Act requires that the cohabitation must be continuous, so if you’ve broken up for a period of time and then gotten back together, this may affect whether you are considered a spouse.
Once a common law partner is considered a spouse for spousal support purposes, they have the same rights and obligations regarding spousal support as if they were married. The entitlement and amount of spousal support will depend on factors like:
* your income and your spouse’s income,
* your assets and your spouse’s assets,
* your age and your spouse’s age,
* your health and your spouse’s health,
* the standard of living when you lived with your spouse,
* your ability to become self-sufficient,
* the contribution you made to your spouse’s career, and
* the economic hardship suffered by you arising from the breakdown of the relationship.
You can get a rough idea as to the amount and length of spousal support here.
Unlike a married spouse, a common law partner in Ontario has no right to seek an equalization of net family property (a division of assets). Each person keeps what is in his or her name. Joint property is shared equally and sold if necessary to divide the proceeds.
If one person is not satisfied with this result, they can make a claim for what is known as unjust enrichment or a claim for a constructive trust. These types of claims tend to be complex, difficult, and uncertain.
Best Practice – Don’t pay for things unless your name is on title. For instance, don’t make half of the home payments unless your name is on title to the home.
There are three elements to a claim for unjust enrichment:
1. Enrichment. One party has been enriched due to his or her partner’s effort, work, or financial contribution.
2. Deprivation. The other party has suffered deprivation, normally by sacrificing time, money, future prospects, and so on.
3. No Legal Reason. There was no legal obligation to provide the enrichment.
What is a constructive trust? A trust just means that one person holds legal title to an asset, but he or she is holding it for the benefit of the other. So, for instance, although your common law partner may be on title to the home, part of it really is owned by you.
The “constructive” part of “constructive” trust just means that the trust is implied by the court, rather than specifically set out in a legal document. The court will may imply this if you have made contributions to the asset. So, for instance, if you contributed financially to a home by paying part of the mortgage, property taxes, repairs and upkeep, or contributed by building an addition, and so on, a court may find that you have a constructive trust in the home.
Ontario gives the matrimonial home special status for married couples. For instance, under the Family Law Act, you get a credit for any asset you bring into the marriage, but if your brought the matrimonial home into the marriage, you do not receive this credit. However, for common law couples this special treatment does not exist. The matrimonial home is treated similar to any other property, which means that when a relationship ends, whoever is on title gets the home. If both parties are on title, then the home is split equally. If a couple cannot decide what to do with the home, a judge will often order it sold and then the proceeds are split.
As well, the Ontario Family Law Act grants special possessory rights to the matrimonial home to married couples. Under this regime, both spouses have an equal right to remain in the matrimonial home regardless of who is on title. As well, one spouse cannot sell or mortgage the matrimonial home without permission from the other. This does not apply to common law partners. For common law partners, you only have the right to remain in the home if your name is on title. So, when the common law relationship ends, if one partner is not on title to the matrimonial home, they can be evicted.
Child Support & Child Custody
Your rights and obligations regarding child custody and child support are the same in Ontario regardless of whether you are married or common law.
If you are in a common law relationship, you have no property rights regarding your partner’s estate. So, if your partner dies without a will, you are treated as a complete stranger. To some extent, you can get around this by seeking dependent’s relief, which is essentially a form of spousal support from an estate.
If you become unable to make your own health care decisions, and you do not have a power of attorney for personal care, a spouse is able to make these decisions for you pursuant to the Health Care Consent Act. Under this act, your common law partner is considered a spouse if you are in a conjugal relationship and either (a) have cohabited for at least one year; (b) have a child together; or (c) have entered into a cohabitation agreement together.
What if My Partner or I is Still Married to Someone Else
Oftentimes, people separate and start a new relationship with a new partner without getting a divorce first. However, the fact that one or both partners is still legally married to a third party does not affect common law rights in Ontario.
Am I Cohabiting?
When you think of a common law couple, you may think of a couple living together as if they were married, only without a marriage certificate. The reality is that there are a wide variety of types of common law relationships. There has even been the odd case where a couple that is dating is considered common law in Ontario. To determine if you are common law, Ontario courts look at the following factors:
1. Shelter – did you and your partner live together;
2. Sexual and Personal Behaviour;
3. Services – did you and your partner help each other the way a traditional family would;
4. Social – did you and your partner portray yourselves as a couple;
5. Societal – how did the community view your relationship;
6. Economic Support – was one partner support the other financially, or were your finances combined?; and
7. Children – did you interact parentally with each other’s children?
Here is a sample of cases that have been decided using these criteria:
Cohabitation was found in the following cases:
(a) Hazlewood v. Kent,  O.J. No. 5263 (Ont. Fam. Ct.)
The parties were the parents of two children. The father worked in one community but spent his weekends at the mother’s residence. The father had a room at the mother’s residence in which he kept things of a personal nature. The mother cleaned the father’s room. The parties had discussed marriage and had jointly met with a financial planner. The father had named the mother on an application for extended health benefits through his employment. The parties spent their weekends together sharing common activities as a family. The father had given his coworkers the telephone number of the mother in the event that he needed to be called on weekends. The parties had considered marriage.
(b) Thauvette v. Malyon,  O.J. No. 1356 (Ont. Gen. Div.)
The parties began an affair while both were living with other partners, seeing each other 2-3 times each week. After three years of the affair, Thauvette left her spouse and moved into a home owned by Malyon and for which Malyon continued to pay all of the expenses. A year later Malyon also left his spouse but the parties chose to maintain separate residences to keep the children apart and to facilitate Malyon’s access to his children. When Thauvette moved out of the home provided for her by Malyon, Malyon helped her with the purchase price of another residence with an advance of $30,000. Thauvette helped Malyon on a regular basis with his farming operation, working with the animals and doing domestic chores. They spend 4-5 nights each week together during this period of their relationship.
(c) McEachem v. Fry Estate,  O.J. No. 1731 (Ont. Gen. Div.)
Following the death of their respective spouses the parties commenced a relationship that lasted for 15 years until the death of Mr. Fry. While they maintained separate residences and pursued some of their own interests, they spent the bulk of their free time together including at least two nights each week at the other’s residence. They socialized as a couple in public. They took annual vacations together each year. Ms McEachern did domestic chores at his house and he paid for maintenance items at her house. He provided clothes for her costing at least $2500 annually. He bought her a fur coat. He provided for her in his will. They were known as a couple within the community and were faithful to one another. They celebrated their “anniversary” each year.
Cohabitation was not found in the following cases
(a) Obringer v. Kennedy Estate (1996), 16 E.T.R. (2d) 27 (Ont. Gen. Div.)
The parties had a twenty year, intimate, exclusive relationship, that included sexual relations, holidays together, gift exchange, personal services and joint friends and acquaintances. Cohabitation was not found however, as there was no common residence and they were financially independent of one another.
(b) Nowell v. Town Estate 1994 CanLII 7285 (ON SC), (1994), 5 R.F.L. (4th) 353 (Ont. Gen. Div.)
The parties had a 24-year affair, maintaining separate residences. Town was married and living with his wife at the time and Nowell knew of her existence. The parties were together most weekends at his farm/work studio and did some work together. They maintained separate residences.
If you have any questions, please feel free to ask below in the comment section. I try hard to answer all questions promptly.