Written on behalf of Shariff & Associates
The most recent Canadian census shows that the popularity of common law relationships in Canada is steadily increasing. Twenty-three percent of Canadian couples are considered common law. Compared to 40 years ago, the number of common law couples has increased by 447%. This makes Canada the G7 country with the highest rate of common law couples. This trend is skewed by data from Quebec, which has over 40% of the country’s common law couples. Ontario, on the other hand, has the lowest proportion of couples that are common law (16%). However, this type of partnership is still growing in popularity in Ontario.
With this boom in unmarried long-term partnerships, it is important to determine the legal differences between being in a common law relationship and being married.
How do you know if you qualify as a common law couple?
The federal government’s definition of being in a common law partnership is continuous cohabitation in a conjugal relationship for a year or having a child together. However, this standard only applies to certain issues like federal taxes.
For provincial matters, the definition of a common-law couple differs by province. In Ontario, couples must meet one of two requirements:
- The couple must have cohabited in a conjugal relationship for three years; or
- If the couple has a child together through birth or adoption, they must have cohabited for one year in a “relationship of some permanence”.
The term “conjugal relationship” relates not just to a sexual or emotional relationship but one in which the couple shares core elements of their lives, such as a house and finances.
Are common-law couples protected under Ontario’s human rights laws?
Family and marital status is a protected grounds under the Ontario Human Rights Code. Section 10 of the Human Rights Code defines marital status as “the status of being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage.” This means that provincial institutions and private businesses cannot discriminate against individuals in common law relationships on the basis of their relationship. It’s notable, however, that marital status is not a protected ground under the equality rights section (section 15) of the Canadian Charter of Rights and Freedoms.
What are the legal differences between being married and being in a common law partnership?
There are a few legal benefits of being in a common law partnership. First, you can develop some spousal support obligations without being legally married. Second, you can be viewed as spouses for government and workplace benefits, such as insurance or tax benefits. Finally, there are social benefits, such as presenting yourselves as spouses to family and friends.
However, there are still many differences between common law couples and married couples. The federal Divorce Act lays out the rights of married couples upon separation but does not apply to common law partners. Therefore, there are a number of differences between the rights of married couples and common law couples when separating.
What property rights do common law couples have?
Family property laws for common law partners are dictated by each province. Some provinces, like B.C., grant common-law partners the right to a 50-50 split of the property acquired during their relationship.
However, Ontario’s Family Law Act does not grant common-law partners the right to an equal split of their property upon separation (unless the property itself is jointly owned). This includes any right to the family home unless both partners are on the title. In some limited circumstances, common law partners may apply to the court to claim some compensation for their contribution to the increased value of the home.
Are common law partners entitled to spousal support?
As with married spouses, common law partners can apply for spousal support. While spousal support for married spouses is set out under the federal Divorce Act, common law partners’ spousal support is provided under Ontario’s Family Law Act.
Courts consider various factors in determining whether support is warranted and if so, the duration and amount of support. These factors are set out under the Spousal Support Advisory Guidelines that, while not law, are used by courts as the starting point in most cases. Some factors courts will consider include:
- The length of the relationship;
- Each partner’s roles and responsibilities in the relationship;
- Whether they have children together;
- Whether there is a significant difference between the partners’ incomes;
- The partners’ ages and physical and mental health;
- The claimant partner’s ability to financially support themselves, as well as the respondent partner’s ability to pay.
Do common law partners have inheritance rights?
Unlike married spouses, if a common law partner dies without a Will, their partner does not have intestate inheritance rights. Their partner’s Will must expressly name them as a beneficiary for them to inherit any part of their estate.
Common law couples must be aware of the legal documents they need to set out their rights if they separate or if one partner dies. Without proactive planning, common law spouses may end up in a situation where they unexpectedly lose property or an inheritance.
Contact the Family Lawyers at Shariff & Associates for Advice on Your Common Law Relationship
At Shariff & Associates in Stouffville, our experienced family lawyers work hard to protect our clients’ rights, whether they be married or in a common law relationship. Our firm represents clients in myriad family law cases, including issues of child custody/decision-making responsibility, child support and spousal support.
Shariff & Associates is the largest family law firm in Stouffville and assists clients in Markham and throughout the Greater Toronto Area. We also serve historically under-serviced communities, including Ajax, Brooklin, Aurora, Newmarket, Uxbridge, Whitby, Oshawa, Mount Albert, Ballantrae and Zephyr. To schedule a confidential consultation with a compassionate family lawyer, call us at 905-591-4545 or reach out online.