WHAT IS A COMMON-LAW SPOUSE ENTITLED TO IN ONTARIO?

Many couples choose to live together in long-term relationships without getting legally married in Ontario. These relationships, are known as common-law partnerships and are quite common in today’s society. However, at the same time there can be confusion regarding the legal rights and entitlements of common-law spouses, especially when it comes to matter like separation, property division, support obligations, and inheritance.  

While it is often presumed by the common-law partners that their rights are similar to those of married couples, these relationships are treated differently in many important ways by Ontario’s legal framework.  

This article explores what a common-law spouse is entitled to in Ontario and highlights the key differences from married couples and offers insights into the rights & protections that exist for common-law partners.  

Defining a Common-Law Relationship in Ontario

Before discussing the specific entitlements, it is pertinent for us to clarify what constitutes a common-law relationship in Ontario. Family Law Act (FLA) defines a common-law spouse is defined as someone who has lived together with their partner in a conjugal (marriage-like) relationship for at least three years. However, if the couple has a child together, the time requirement is shortened, and they can be considered common-law partners after living together for any amount of time.

While the emotional and personal aspects of common-law relationships usually resemble those of marriage, the legal entitlements upon separation can differ significantly. Ontario law provides some specific rights and protections for common-law spouses, but these do not automatically incorporate some of the benefits that married spouses enjoy.

Property Division for Common-Law Spouses

The most prominent difference between common-law spouses and married couples in Ontario includes the treatment of property upon separation. As under the Family Law Act, married spouses are entitled to an equal division of property acquired during the marriage, the married couples on separating usually share the value of the assets amassed during their relationship, including the home they shared, regardless of who holds the title.

But the common-law spouses are not automatically entitled to the equal division of property. Unless both partners’ names are on the title of a property or asset, a common-law spouse holds no automatic right to claim a share of that property upon separation, including the family home, which is one of the most prominent assets in most relationships.

For instance if a couple lives in a house owned by one partner, the other partner has no legal claim to the house after the relationship ends, irrespective of how many years they lived there contributed to household expenses. Significant challenges can be created for common-law partners, due to this law, especially in long-term relationships where one partner has been financially dependent or has made non-financial contributions to the relationship.

However, it is important for common-law spouses to know that they may still have legal avenues to seek compensation through claims like unjust enrichment or constructive trust. These claims can be successful if the non-titled partner can prove that significant contributions (financial or otherwise) were made by them to the property or asset, and it would be unfair for them to receive nothing in return. Unjust enrichment claims are based on the argument that one partner unfairly benefited at the expense of another, and constructive trust claims aim to recognize the contributions of the non-titled partner and grant them a portion of the property.

Spousal Support for Common-Law Partners

Though common-law partners do not hold the same property rights as married spouses, they may still be entitled to spousal support upon separation. Ontario law makes common-law spouses eligible for spousal support on their meeting certain conditions. The Family Law Act and the Divorce Act furnish guidelines for spousal support for both married and common-law couples.

For one to be eligible for spousal support as a common-law spouse in Ontario, they must meet one of the following conditions must be met:

• • The couple has lived together in a common-law relationship for at least three years

or

• • The couple having lived together in a conjugal relationship have a child together, regardless of the length of the relationship.

Spousal support is usually awarded in cases where there is a significant economic disparity between the partners or in the cases where one partner has sacrificed their career or financial opportunities for the benefit of the other or the family. Factors such as the length of the relationship, financial situation of each partner, & their roles during the relationship (for example taking care of children) will be considered when deciding entitlement of one partner to spousal support.

Support payments are designed to ensure fairness and minimise financial hardship following the end of a relationship. The amount and duration of spousal support can vary, after the court assesses factors like each partner’s income, needs, and ability to become self-sufficient. Common-law spouses are treated similarly to married couples in this area, provided they meet the eligibility criteria.

Inheritance Rights of Common-Law Spouses

Another area where the legal entitlements of common-law spouses differ significantly from those of married couples is the inheritance rights. Like in Married couples, common-law spouses do not hold the same automatic rights to inherit their partner’s estate if their partner dies without a will.

• Married Spouses: If a married spouse dies without a will, the surviving spouse is entitled to a significant portion of the deceased’s estate, under Ontario’s Succession Law Reform Act, including the matrimonial home, financial assets, & personal property.
• Common-Law Spouses: In contrast, common-law partners hold no automatic right to inherit their partner’s estate unless they have been specifically named in the will. The surviving partner can be left without any portion of the estate, if a common-law partner dies without a will, the & the deceased partner’s assets may be distributed to their relatives, like children, parents, or siblings.

However, it is important for common-law couples to plan their estates carefully by drafting wills specifying how their assets should be distributed because for a lack of a will, the surviving common-law partner may face significant financial challenges, as they will not inherit the estate by default.

Child Custody and Support for Common-Law Couples

Ontario law treats common-law spouses and married couples the same when it comes to child custody and child support. The rights & responsibilities related to children are determined keeping the best interests of the child, regardless of the parents’ marital status.

• Child Custody: The custody of children of the common-law partners who decide to separate, will be determined and arrangements accessed by the court based on what is best for the children. The parents being common-law partners rather than married couple has no effect on custody decisions.
• Child Support: Both common-law and married parents are committed to financially support their children. The parent with primary custody of the children may seek child support from the other parent. Child support payments are typically decided based on the Federal Child Support Guidelines, taking into account factors like each parent’s income and the number of children involved.

The legal structure as regards to children in common-law relationships is designed to make sure that children receive the financial support and care needed, irrelevant of the fact that whether their parents are married or common-law.

Pension Benefits for Common-Law Spouses

Common-law spouses may also be entitled to certain pension benefits in Ontario. This may include both public and private pension plans. However, the entitlements can be different based on the specific plan.

• Canada Pension Plan (CPP) Survivor Benefits: A common-law spouse may be eligible to receive survivor benefits under the Canada Pension Plan (CPP) in the incidence of their partner passing away. To be eligible, the surviving common-law spouse must provide appropriate evidence of their relationship and meet the CPP’s eligibility requirements.
• Employer-Sponsored Pension Plans: There are various employer-sponsored pension plans that also recognize common-law spouses as beneficiaries. However, this is not always guaranteed. It is important that common-law couples check the terms of their pension plans to ascertain whether the surviving partner will receive pension benefits. Common-law spouse can be designated as a beneficiary in many cases.

The Importance of Estate Planning for Common-Law Couples

Given the significant differences between the legal rights of common-law and married spouses, especially in regard to property division and inheritance, it is essential for common-law couples in Ontario to engage in careful estate planning. Lack of adequate planning can lead to common-law partners facing financial hardship or legal disputes after a separation or the death of their partner.

Here are some key estate planning steps for common-law couples:

1. Cohabitation Agreement: Similar to a prenuptial agreement for married couples, cohabitation agreement is a legally binding document that can outline how property will be divided & whether spousal support will be paid if the relationship ends. A cohabitation agreement can help provide clarity and protection for both partners.
2. Wills: Drafting a will is very important for common-law couples because they do not hold the automatic right to inherit their partner’s estate. A will allows individuals to specify how they want their assets distributed and can ensure that their common-law partner is taken care of.
3. Designating Beneficiaries: Common-law couples should ensure that their partner is listed as a beneficiary on life insurance policies, RRSPs, pensions, & other financial instruments, to help protect the surviving partner’s interests financially in the event of a death.
4. Joint Ownership: Common-law couples sometimes choose to hold assets like the family home or bank accounts in joint ownership, providing both partners with a legal interest in the property and simplifying the process of dividing assets upon separation or death.

Bottom-line

In Ontario, common-law spouses are entitled to certain rights & protections, which differ significantly from the rights enjoyed by married couples. While common-law partners may be eligible for spousal support and pension benefits, they do not have an automatic right to share in their partner’s property or inherit their estate without a will.

Proactive steps should be taken by Common-law couples. This can help protect their rights & interests through cohabitation agreements, wills, and beneficiary designations. By engaging in careful planning, common-law partners can ensure that they are financially secure and that their legal rights are respected, even without the formal recognition of marriage.

Feel free to reach our office and expert legal advisors to know about your rights and to safeguard them appropriately.