Understanding Common Law Legal Rights In Ontario

Common-Law couple jogging

Understanding Common Law Legal Rights In Ontario

With marriage on the downturn and common-law couples on the rise, it’s a good idea to familiarize yourself with common law legal rights and responsibilities so you’re prepared in the event of relationship breakdown.

According to Ontario’s Family Law Act, a couple is considered to be living in a common-law relationship when they meet these criteria

– They have been practicing an intimate, live-in relationship for at least 3 years, or

– Have been living together for any amount of time but have a child together

Although common-law partners share many of the same legal rights as married couples, it’s important to understand the differences. 

Division Of Property

There are two key differences that separate common law and married spouses when it comes to property rights.

– Unless both common-law partners are listed as owners of the family home, they do not possess the equal right to live in the home upon separation.
– Common-law partners do not have an automatic right to equal family property or assets acquired during the course of their relationship.

In many common-law cases, the family home and property would go to the owner and each partner would keep the items they owned personally. 

It is often assumed, however, by common-law partners that they have an automatic claim to half the assets of their partner once the relationship ends. While this isn’t necessarily true, it can be possible for one partner to make a claim against the other’s property using an equitable relief claim. There are two kinds of claims:

– A constructive trust claim: this claim may allow the partner who is not on the home or property’s title, but has made significant investments into the household, property or mortgage, may be eligible to receive compensation.
– An unjust enrichment claim: this type of claim allows one partner to contest that through labour/time or money, the other partner’s life was enriched.

Spousal Support

Common-law partnerships have the same rights to spousal support payments as married couples, providing.

– You and your partner have been living together intimately for at least 3 years, or

– You and your partner have a child together, either through birth or adoption.

In order to determine the amount, period of time, and type of spousal support that one partner may owe the other, there are a few factors that need to be addressed such as:

– The income and requirements of each partner

– The affordability of support payments

– Employment status of each partner

– The self-sufficiency and motivation of the partner who would be receiving compensation

The court will assess whether one common-law partner requires financial support and whether the other has the ability to pay support. In cases where both common-law partners are employed and earning a similar income, the court often does not order spousal support payments. 

Child Support

When it comes to child support, common-law couples have the same obligations and legal rights as married couples to care for their children. This includes the obligation to financially support children and also the same rights to custody. 

When parents are unable to decide or agree on custody arrangements for their children, the courts will step in to decide what is in the best interest of the children. In matters of child support, a court can order support payments based on current federal and provincial guidelines. 


Canada Pension Plan (CPP) contributors and their families can expect to be compensated with a partial earnings replacement upon, retirement, disability or death. Canadians 65 and older can also expect to receive the Old Age Security (OAS) benefit which is paid monthly and may also include the Guaranteed Income Supplement (GIS) for low-income Canadians. 

All rules regarding benefits such as CPP and OAS for common law spouses fall under federal law. For couples living together for at least one year, they will be considered common-law spouses for the purpose of CPP and OAS benefits.

Other benefits that may be split in a common-law separation include:

Survivor’s Pension

Survivor pension benefits are paid to the legal spouse or common-law partner of the deceased CPP contributor at the time of their death. In some cases, a separated legal spouse may receive survivor benefits if the deceased person had no other legal partner. 

Death Benefit

Death benefits from CPP are issued as a one-time, lump-sum payment that is made to the estate of a deceased CPP contributor. The executor or administrator must apply for the death benefit on behalf of a legally married or common-law partner. 

Pension Sharing

Married and common-law spouses are able to voluntarily share their CPP retirement pensions if they choose. 

GIS Allowance Benefit

Low-income Canadians between the ages of 60-64, who are the spouse or common-law partner of someone receiving the GIS benefit, may qualify to receive the Allowance Benefit.

GIS Allowance for the Survivor Benefit

Low-income Canadians between the ages of 60-64, whose spouse has died, may qualify to receive the Allowance for the Survivor Benefit. 

Cohabitation Agreement

When common-law couples end their relationship, issues such as division of property and inheritance can become more complicated than a divorce. This is because laws regarding common-law relationships are not as clearly defined as they are in a legal marriage. For this reason, it’s a good idea to familiarize yourself with the rights that apply to common-law spouses and create a cohabitation agreement with your partner that will make things less complicated if your relationship ends. 

A cohabitation agreement is similar to a prenuptial agreement, minus the nuptials. Its purpose is to protect each partner’s assets and provide easy-to-follow guidelines when it comes to dividing property in the case of relationship breakdown. A cohabitation agreement should also address how debts will be settled, preferences toward spousal support, etc. However, a cohabitation agreement cannot include issues such as child custody or child support payments, since these are handled separately and often addressed after separation has occurred. 

Creating a cohabitation agreement isn’t as easy as creating a document and signing it together. To have a document such as this hold up in court, you must seek independent legal advice and draft the document in accordance with the law.

Stewart Esten Family Law

Common law legal rights can be complicated, however, fully understanding your rights is part of protecting them. At Stewart Esten, we have an experienced team of Family Law lawyers who provide solutions to a wide range of issues including.

  • Marriage contracts
  • Cohabitation agreements
  • Separation agreements
  • Child custody
  • Child and spousal support
  • Property division
  • Divorce
  • Mediation

Our team is dedicated to helping you and your family navigate the legal process and find the best outcome. Contact us today.

Find the basics of common-law legal rights in our Slideshare:

The information provided herein is not intended as legal advice and should not be construed as such. For personalized legal guidance, it is recommended to seek the assistance of a qualified lawyer.
Stewart Esten
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