Common Law Relationships – What are they all about?

Michael CarabashPlease note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to your common law relationship (e.g. cohabitation agreement, separation agreement, getting married, etc.) in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Legal Forms who can offer information, advice, and assistance with respect to your common law relationship.

In this blog, I’ll be discussing common law relationships in Ontario.

In Ontario, when two people (regardless of their sexual orientation) live continuously together for at period of time, certain rights and obligations arise in the following contexts: family law, tax, welfare and family benefits, and employee benefit plans. Each context has its own definition of what constitutes a “common law” relationship and so too does each jurisdiction. For the purpose of this blog, I’ll only be discussing common law relationships in the context of family law issues.

Family Law: Support Obligations
Section 29 of the Ontario Family Law Act recognizes common law relationships for the purpose of support obligations (Part III of the Act). Such obligations arise where two people have been living together in a conjugal relationship for three continuous years (s. 29(a))or where they have a relationship of “some permanence” and “are the natural or adoptive parents of a child” (s. 29(b)).

What about Division of Property or Equalization of Net Family Property?
Many people confuse the property rights and obligations that arise in the context of common law relationships for those arising from marriages. The bottom line is that common law spouses are not automatically entitled to anything (unlike in marriages, where spouses are generally entitled to half of the net family property).

Just look at definition of “spouse” used in respect of the division of property section of the Ontario Family Law Act. That definition does not include common law relationships. Rather, for those purposes, “spouse” means two people who are married to each other or have entered into a marriage that is “voidable or void, in good faith on the part of a person relying on this clause to assert any right” (s. 1 – definition of “spouse”).

Therefore, common law partners are not entitled to half of the net family property (as they would normally be if they were married). Rather, courts have to look to the doctrine of constructive trust as a way to divide property equitably between the parties. Absent a trust agreement, cohabitation agreement, or separation agreement, these situations are quite messy because courts will need to examine all of the facts of each particular case to make a judgment.

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