ARTICLE
19 September 2023

Common Law Relationship? You Do Not Have The Same Rights As Married Spouses In Ontario

DS
Devry Smith Frank LLP
Contributor
Since 1964, Devry Smith Frank LLP – conveniently located in Whitby, Barrie and headquartered in the Don Mills area of Toronto, has been a trusted advisor and advocate for corporations, individuals, and small businesses. Our full-service Canadian law firm is comprised of over 175 dedicated legal and support staff, delivering personalised and transparent legal expertise in virtually every area of law.
Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse...
Canada Family and Matrimonial
To print this article, all you need is to be registered or login on Mondaq.com.

Defining a Spouse Under the Family Law Act

Under the Family Law Act, RSO 1990, c F3 (FLA) a spouse is defined as two persons who are legally married unless otherwise noted. Common law partners are considered a spouse under certain sections of the FLA and are defined as two persons who are not married to each other and have cohabited for a period of not less than three years. However, this is not the case when awarding property rights. Under the FLA, common law partners are not entitled to the same property rights as married spouses. More specifically, common law partners are not entitled to the equalization of net family properties.

Equalization of Net Family Properties

Under the FLA, when a divorce is granted or spouses separate with no reasonable prospect of resuming cohabitation, the spouse whose net family property is less than the other's is entitled to one-half of the difference between them. As discussed above, in Ontario, this right is only available for married spouses. Common law partners are not awarded these rights and must establish an interest in property when seeking to equalize property. This process can be quite complicated.

The Push for Common Law Partners' Entitlement

Over the years, as common law is becoming more and more common, there has been a push for common law partners to be entitled to the same rights as married spouses in Ontario. As mentioned above, there is a process that common law partners can take in order to establish a property right. As a common law partner, you would need to make a claim for a constructive trust if you contributed to the value of an asset and believe your partner would be unjustly enriched if they were to retain the full value of this asset. This process can be complex and relies on the court process, therefore creating a lengthy delay in gaining your property entitlement.

British Columbia has re-visited their old family rules and now award all of the same rights to common law partners as married spouses. So why not Ontario? Until our FLA re-visits the definition of spouse under the property regime, if you are in a common law relationship, it is important that you understand that you are not entitled to the same property rights as married spouses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
19 September 2023

Common Law Relationship? You Do Not Have The Same Rights As Married Spouses In Ontario

Canada Family and Matrimonial
Contributor
Since 1964, Devry Smith Frank LLP – conveniently located in Whitby, Barrie and headquartered in the Don Mills area of Toronto, has been a trusted advisor and advocate for corporations, individuals, and small businesses. Our full-service Canadian law firm is comprised of over 175 dedicated legal and support staff, delivering personalised and transparent legal expertise in virtually every area of law.
See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More