What does “common-law” mean in Ontario?
In Ontario, a “common-law relationship” generally refers to two adults (whether opposite-sex or same-sex) who are living together in a committed, marriage-like, or “conjugal” relationship without being legally married. While this term is frequently used in everyday speech, it’s important to emphasize that simply living together does not automatically grant the same legal rights as marriage. The statutory regime for married spouses differs significantly from that for partners who have not married.
A common-law relationship may be recognized for certain legal purposes (for example, support) but is not automatically equivalent to marriage in terms of property rights, division of assets, or statutory status.
When does a relationship count as common-law?
Duration and child criteria
For many legal purposes in Ontario (especially support obligations), a couple will be treated as being in a “spouse-type” relationship if one of the following applies:
- They have lived together in a continuous conjugal relationship for at least three years; or
- They have cohabited in a conjugal relationship and have a child together (by birth or adoption).
Note: The above criteria apply for determining eligibility for spousal support rights under the Family Law Act (FLA). That said, even if these criteria are met, the relationship being “common-law” in the sense of support rights does not automatically mean all the property rights of married spouses apply.
What “cohabitation” and “conjugal relationship” mean
A conjugal relationship is more than simply sharing a residence. It typically includes:
- A mutual commitment to a shared life;
- Emotional interdependence and personal intimacy;
- Living together and sharing domestic and financial responsibilities (for example: meals, household tasks, joint finances, or representation to others as a couple);
- Stability and permanence (i.e., more than a short-term stay).
The fact-specific nature of “conjugal” means that each relationship must be assessed on its own merits.
Key Legal Differences Between Married and Common-Law Partners
Property, assets and debts
- For married spouses: Part I of the Family Law Act establishes rules for “net family property” and equalization payments upon separation.
- For common-law partners: Those equalization provisions do not apply simply because of cohabitation. Each partner retains what they brought in, and what they acquired solely in their own name, subject to any agreements or court claims of other kinds.
In other words, if you’re in a common-law relationship and you separate, you cannot count on an automatic 50/50 division of all assets and debts—even if you shared finances and lived together for many years.
The “family home”
- For married couples: The matrimonial home receives special protection: even if only one spouse owns the home, both spouses typically have equal rights to possession of it while the marriage continues.
- For common-law partners: The partner whose name is on the title (or whose lease or legal tenancy exists) generally has the right to decide occupancy upon separation. The non-titled partner may have fewer legal protections unless other legal claims are made.
Support obligations (spousal & child support)
- Child support: Children of common-law relationships have equivalent entitlement to child support under the FLA (where children and parenting issues apply) as children of married couples.
- Spousal support: A partner in a common-law relationship may be eligible for spousal support if the relationship meets the time/child criteria (3 years, or 1 year with a child) and other factors apply.
Ending the relationship
- Married spouses must obtain a divorce under the federal Divorce Act (if they were legally married) to end the marriage.
- In contrast, common-law partners do not need a formal divorce: the relationship simply ends when one or both move out / end the conjugal relationship. However, legal issues such as support, property claims, and rights of occupancy still need to be addressed.
Legal Remedies Available for Common-Law Partners
Constructive trust / unjust enrichment
Because common-law partners do not have automatic property division rights, the main legal route to claim a beneficial interest in property owned by the other partner is via a claim of unjust enrichment / constructive trust. These claims are fact-specific and require sophisticated legal analysis:
- One must show that the other partner was enriched;
- The claimant was correspondingly deprived;
- There was no juristic reason (such as a contract or gift) for the enrichment.
- Courts will consider factors such as: the length of the relationship, integration of finances, joint venture aspects, shared children, whether one partner supported the other, and whether contributions (monetary or labour) were made to benefit the other’s property or business.
Cohabitation (domestic) agreements
Common-law partners may wish to prepare a cohabitation agreement (also called a domestic contract) before or during cohabitation. This agreement sets out how property, debts, occupancy, and financial responsibilities will be handled if the relationship ends. Because the statutory default rules for common-law partners are limited, a well-drafted agreement provides greater certainty and helps avoid expensive litigation later.
Separation agreements and legal representation
When a common-law relationship ends, it is wise to document separation via a separation agreement (if feasible), which can cover support, parenting, asset division (to the extent possible) and other rights. Legal advice is important since the protections are not automatic.
What Happens If a Common-Law Relationship Ends?
Assets and debts
Because the automatic equalization rules do not apply, each partner’s entitlement to property or debt division depends on how title and contributions are structured. If one partner owned the home, investments or other assets in their name, the other partner may not automatically get a share unless a constructive trust claim is made and succeeds. With debts, if both names are on a credit line or mortgage, each person is legally liable to the lender—regardless of any “division” agreement.
Occupancy rights/exclusive possession, and moving out
If you live with your common-law partner in a house owned solely by them and you separate, generally, you do not have the same occupancy rights that a married spouse would have. The titled partner is often free to ask the other to leave unless you have another legal basis (such as tenancy rights or a court order) to stay.
Support rights
If you meet the eligibility criteria (duration/child), you may apply for spousal support. You also have child support rights if there are children. Obtaining support often depends on relationship history, your financial dependency or contribution, the partner’s income, and other factors.
Death of a partner
If one partner dies, a common-law partner may not automatically inherit as a married spouse would under intestacy rules or have all the same property claims unless specific steps were taken (e.g., wills, estate plans, cohabitation agreement). It is important for common-law couples to plan their estates accordingly.
Why It’s Crucial to Know the Details
Many common-law couples assume that after years together, they will walk away with half the house or a fair share of the assets—but legally in Ontario, that assumption can be mistaken. Key reasons to clarify your legal position:
- Without a cohabitation agreement, the default legal regime may leave one partner with fewer rights than anticipated.
- Contributions of time, labour or money may not translate into ownership unless legal claims succeed.
- Without clarity, disputes about property or support can become expensive, emotional, and time-consuming.
- Planning ahead (e.g., via agreement, wills, estate planning) reduces risk and cost.
Practical Checklist for Common-Law Couples
Here are questions and actions couples living together may consider:
- Have we lived together long enough / had children so that the FLA may apply for support?
- Do we have a cohabitation agreement that sets out how assets, debts, occupancy and support will be handled?
- Who owns what (home, investment, business)? Are assets titled in one name, jointly, or separately?
- Do we share bank accounts, credit cards, business interests? How integrated are our finances?
- Have we kept records of contributions (financial, labour, household, child-care)?
- Do we each have wills and estate plans that reflect our relationship and wishes in case of death?
- On separation: Do we need legal advice to explore unjust enrichment / constructive trust claims?
- Are there children involved? How will parenting, child support and child care be handled?
- Have we considered early mediation, negotiation or a separation agreement rather than embarking immediately on court proceedings?
Case Study Summaries: How Ontario’s Common-Law Rules Apply in Real Life
Understanding how Ontario family law applies to common-law relationships can be confusing. The examples below are hypothetical scenarios that illustrate how the law might treat issues like property division, spousal support, and cohabitation agreements for unmarried couples.
These case studies are for educational purposes only and are not legal advice. Every situation is unique—speak to a family lawyer in Ontario to get advice tailored to your circumstances.
Case Study 1: Long-Term Cohabitation Without a Cohabitation Agreement
Background: A and L lived together in Mississauga for 9 years. A owned the home before the relationship began, but during their time together, L contributed regularly to mortgage payments, renovations, and household expenses. They never signed a cohabitation agreement.
Outcome: When the relationship ended, L did not have an automatic right to share in the home’s value because Ontario’s Family Law Act does not grant common-law partners the same property-division rights as married spouses. However, L was able to make a claim for unjust enrichment, arguing that her financial and non-financial contributions increased the home’s value. The court recognized her claim and awarded her a share of the equity based on her contributions.
Key Takeaway: Without a written cohabitation agreement, property rights for common-law partners depend on proving contributions and fairness—not automatic entitlements. Legal documentation can prevent lengthy disputes later.
Case Study 2: Common-Law Partners with a Child and Spousal Support
Background: S and M lived together in Toronto for four years and had one child. S stayed home to care for their child while M worked full-time. When they separated, S sought spousal support and child support.
Outcome: Because they lived together for more than three years and shared a child, they met the definition of “spouses” under the Family Law Act for support purposes. The court ordered M to pay both child and spousal support, taking into account S’s reduced earning capacity and her role as primary caregiver.
Key Takeaway: Even though common-law partners are not legally married; they may still qualify for spousal support in Ontario if they meet the three-year threshold or have a child together. Cohabitation duration and financial dependency are key factors.
Case Study 3: Separation After Two Years — No Children, No Agreement
Background: J and P lived together for two years in Ottawa, but did not share a child. They maintained separate bank accounts and paid expenses proportionally. When they separated, J claimed a right to P’s savings account, arguing they had built their lives together.
Outcome: Because they had not lived together long enough to meet Ontario’s definition of “spouses” and did not share property ownership, J had no entitlement to P’s assets. There was no cohabitation agreement or financial interdependence that justified a claim under unjust enrichment.
Key Takeaway: Short-term common-law relationships with separate finances usually do not create property or support rights. A written agreement helps clarify expectations and prevent misunderstandings.
Case Study 4: Estate Rights of a Deceased Common-Law Partner
Background: D and R lived together for 11 years in Brampton but never married. R passed away suddenly without a will. His adult children from a previous marriage inherited everything, leaving D with no legal claim to his estate.
Outcome: Because common-law partners in Ontario do not have automatic inheritance rights, D could not inherit under intestacy laws. Her only option was to file a dependant’s relief claim under the Succession Law Reform Act, showing she was financially dependent on R.
Key Takeaway: Common-law partners must plan ahead with a will and estate documents. Without them, a surviving partner may be left unprotected under Ontario’s inheritance laws.
Case Study 5: Cohabitation Agreement Protecting Both Partners
Background: A and K decided to live together and purchased a condo in both their names. Before moving in, they signed a cohabitation agreement outlining how expenses, ownership, and potential separation would be handled.
Outcome: When they later separated, the agreement provided clear terms for dividing the condo and avoiding a costly legal dispute. The court upheld the agreement because it was signed voluntarily, with independent legal advice for both parties.
Key Takeaway: A cohabitation agreement in Ontario is one of the best tools for common-law partners to protect their property, clarify expectations, and avoid litigation. It’s an essential document for any couple planning to live together long-term.
Final Insight
Each of these examples highlights the importance of legal planning for common-law couples. Unlike marriage, cohabitation does not automatically grant property, inheritance, or financial rights. Protect yourself with a cohabitation agreement, a will, and professional legal advice.