In Canada, the legal definition of common law marriage varies depending on federal and provincial law. If you and your partner have been in a conjugal relationship in Ontario for at least three years, you may be eligible for common-law rights under Ontario provincial legislation.
If you are wondering what is a common law spouse entitled to in Ontario then it’s important to consider several things. To help ensure that your relationship is recognized and protected in Ontario, here’s what you need to know.
What is the difference between being married and being common-law partners?
The Family Law Act (FLA) defines a common-law partner as a man or woman who cohabits with another person in a romantic capacity. Married couples are different from common law partners when it comes to property division in the event of a separation. Married couples may use the Family Law Act to divide property, whereas common-law partners must follow other rules.
In case a married couple splits up, the FLA would calculate the net worth of both parties at the time of separation. The more prosperous partner will pay their former spouse half of the total difference in wealth.
On the other hand, common-law partners don’t get to claim any share of their former spouse’s property. However, if they have children together, they are eligible for child support.
What are the rights of common-law couples in Ontario?
Under Ontario family law, common-law partners are entitled to spousal or child support. However, they won’t be able to make claims for equitable division of property if they separate.
Also, unlike married couples, common-law partners do not have automatic rights to inherit property when their partner dies without a will. Nevertheless, common-law partners are still eligible to receive a portion of the deceased partner’s property if they have lived together for three years or are engaged to be married.
Common-law couples rights in spousal support
In Ontario, common-law couples have the same rights in spousal support as married couples. Spousal support helps compensate a former spouse who has suffered an economic disadvantage due to the marriage or common-law relationship.
Spousal support is based on many factors. These include the length of time married or cohabiting, the standard of living before separation, and the financial resources available. The court will also consider the spouse’s age, health, and ability to re-enter the workforce.
Common-law couples rights in child support
A common-law partner is eligible to receive child support for any biological or adopted child from the relationship. The parent with custody has to pay child support to their former common-law partner for as long as the children are under age.
Common-law couples rights in property division
Married couples and common-law partners in Ontario do not have the same rights in property division. According to the FLA, married couples can apply for equalization payment in the event of a separation. Equitable division refers to a spouse’s right to claim half of the total difference in net worth at the time of parting.
This law is not applicable for common-law partners in Ontario as they will have to follow other rules. Even though you’re not legally married, you can still claim an interest in your partner’s assets if you can prove that you’ve contributed financially to the relationship. We suggest you seek legal expertise before making that claim.
Common-law couples rights in case of demise
When common-law partners pass away without a will, their family members cannot inherit their property. However, they can file a claim in two ways:
1. Dependency claim
Unmarried couples and common-law partners can claim their deceased partner’s estate if that person financially supported them during their relationship. The claimant will be in line to receive a portion of the estate to prove that dependency.
2. Unjust enrichment claim
If the claimant didn’t financially support the common-law partner and can’t prove dependency, they may still be able to get their share of the property under an ‘unjust enrichment claim.’
To get your share of the property under unjust enrichment, you have to prove that you have been financially disadvantaged due to the relationship or that you contributed to their property. Unjust enrichment claims also work for those who suffer spousal abuse.
Final thoughts
While common-law partners in Ontario do not have the government benefits and rights reserved for married couples, they still have some legal protection. It’s essential to keep in mind that rights can vary from province to province, so you should consult a legal expert if you have any questions.
It’s also a good idea to seek legal advice if you’re about to become a common-law partner. This will help you understand the legal effects of living together and protect yourself financially if anything happens to your partner.
