Separation is a seismic event. For common-law partners in Ontario, the initial shock often gives way to a single, terrifying question: Do I have to leave the home immediately? Unlike married spouses, who are protected by the Matrimonial Home provisions of the Family Law Act, common-law partners face a far more complex and legally precarious situation. Your right to shelter after separation is rarely automatic; it must be fought for and proven through sophisticated legal doctrines rooted in equity.
This comprehensive guide, prepared by a dedicated Ontario family law professional, provides an in-depth look at the distinct legal tools available to common-law partners to protect their interests in the family home. We delve into the foundational case law—specifically the Supreme Court of Canada’s seminal decision in Kerr v. Baranow—that dictates how property is divided for unmarried couples in the province.
The Critical Distinction: Why the Matrimonial Home Rules Do Not Apply
The single most critical piece of information for separating common-law partners is that Part II (Matrimonial Home) of the Family Law Act (FLA) in Ontario does not apply to you.
| Legal Term | Applicable To | Core Right to Possession | Right to Equal Division |
| Matrimonial Home | Legally Married Spouses Only | Automatic, Equal Right to Possession (Section 19, FLA) | Automatic Right to Equalization (Part I, FLA) |
| Family Home | Common-Law Partners | No Automatic Right; Determined by Title | No Automatic Equalization; Claim Based on Equity |
If you are married, the home where you live together is legally designated a Matrimonial Home, and both spouses have an equal right to stay, regardless of whose name is on the deed. This automatic right prevents one spouse from selling, mortgaging, or unilaterally forcing the other out without a court order for exclusive possession.
For common-law partners, this protection does not exist. Your home is simply a “Family Home,” and the legal starting point remains: ownership follows title.
Who Owns the House? Title is Everything (But Not Always Final)
When a common-law relationship ends, the starting line for property division is determined by the legal ownership documents:
- Joint Ownership: If both partners’ names are on the deed (joint tenants or tenants-in-common), you both share an equal, legal right to possession. Neither partner can unilaterally demand that the other leave. In this case, the main dispute will be how to sell or transfer the property and whether one party is entitled to occupation rent (compensation paid by the partner remaining in the home).
- Sole Ownership: If only one partner’s name is on the title (the titled partner), that person is the legal owner, and they retain the presumptive right to possession. The non-titled partner may be asked—or even formally evicted—to leave. It is in this scenario that legal intervention is most urgently required to protect the non-titled partner’s right to shelter.
If you are the non-titled partner, your survival strategy depends entirely on proving an equitable interest in the property, an interest that the titled partner is legally obligated to recognize.
Your Legal Avenue: The Doctrine of Unjust Enrichment
Since the Family Law Act offers no remedy for common-law property division, the courts rely on the equitable doctrine of Unjust Enrichment to ensure fairness and prevent one partner from retaining a windfall at the expense of the other. This doctrine is the gateway to obtaining either monetary compensation or an actual ownership share (a constructive trust) in the home.
To succeed with an unjust enrichment claim in Ontario, you must successfully prove three distinct elements, as clarified by the Supreme Court of Canada in the landmark 2011 decision, Kerr v. Baranow:
The Three-Part Test for Unjust Enrichment
- An Enrichment: The defendant (the titled partner) received a benefit or increase in their wealth (e.g., the house value increased, their debt decreased, or they saved money on domestic services).
- A Corresponding Deprivation: The plaintiff (the non-titled partner) suffered a corresponding loss or detriment (e.g., spending their own money, providing uncompensated labour, or sacrificing a career opportunity).
- Absence of a Juristic Reason: There is no legal or just reason for the defendant to retain the benefit without compensating the plaintiff (e.g., the contribution was not a gift, nor was it covered by a contract or legal obligation).
The Joint Family Venture (JFV) Framework
In long-term common-law relationships, the courts often examine whether the parties were operating a Joint Family Venture (JFV). A finding that a JFV existed significantly strengthens the claim and allows the court to assess the remedy based on the proportionate share of the total wealth accumulated by the couple, rather than just isolated transactions.
The Supreme Court of Canada in Kerr v. Baranow outlined four factors to determine the existence of a JFV:
- Mutual Effort: Did the parties work collaboratively towards common goals? This looks at whether they functioned as a true team, even if their roles were different (e.g., one was the breadwinner, the other the primary caregiver).
- Economic Integration: How integrated were the finances? Did they pool their money, have joint bank accounts, share credit cards, or make joint financial decisions?
- Actual Intention: What was the actual, shared intention of the parties regarding property? Did they hold themselves out as a couple who intended to share wealth, or was there clear evidence that they intended to keep their assets entirely separate?
- Priority of the Family: Did one or both partners make sacrifices for the sake of the family unit (e.g., one partner moved for the other’s job, or gave up a career to raise children)? These sacrifices often directly result in the titled partner’s greater accumulation of wealth.
The existence of a JFV helps the court move past simply calculating the hourly wage of domestic labour and recognize the relationship as an economic partnership, justifying a larger, proportionate share of the wealth.
Choosing the Right Remedy: Monetary Award vs. Constructive Trust
Once unjust enrichment is proven, the court must select the appropriate remedy. The choice determines whether you receive a cash payment or a share of the home itself.
Remedy A: Monetary Award (Value Survived)
A monetary award is the default remedy. It requires the titled partner to pay a specified sum of money to the non-titled partner to compensate for the benefit they unjustly retained.
- When it is used: When the unjust enrichment is linked generally to the accumulation of family wealth through a JFV, but there is no specific, direct link between the non-titled partner’s contributions and the acquisition or preservation of the specific home.
- Quantification: The award is typically calculated based on the value survived—meaning, the non-titled partner is compensated for their proportionate share of the total wealth accumulated during the relationship, based on their contribution.
Remedy B: Constructive Trust (Proprietary Interest)
A Constructive Trust is the most powerful remedy available to the non-titled partner because it grants them an equitable proprietary interest in the specific property—meaning a legal ownership share, even if their name isn’t on the deed.
- When it is granted: A Constructive Trust is only granted if a monetary award is deemed inadequate or insufficient (e.g., the titled partner has no cash to pay the award, or the specific property is uniquely valuable) AND the non-titled partner can demonstrate a sufficiently substantial and direct causal connection (a nexus) between their contributions and the acquisition, preservation, maintenance, or improvement of the property.
- The Nexus Requirement: Did your contributions directly increase the value of the home?
- Examples of a strong nexus: Paying down the mortgage principal, physically performing or paying for major renovations (a new roof, kitchen upgrade), or contributing to the down payment.
- Result: If a trust is imposed, the non-titled partner legally owns a share of the house, proportionate to their contributions. This ownership share then becomes the basis for asserting the right to remain in the property.
Securing Your Shelter: Obtaining an Exclusive Possession Order
As established, common-law partners have no automatic statutory right to exclusive possession of the family home under the FLA. However, the court has inherent jurisdiction to grant an interim order allowing the non-titled partner to remain in the home until the property claims are resolved.
This relief is typically achieved through two primary legal avenues:
- The Interlocutory Injunction Based on a Trust Claim
If the non-titled partner has a strong, meritorious claim for a Constructive Trust—and can demonstrate they likely have a proprietary interest in the home—the court may issue an interim injunction preventing the titled owner from evicting them or selling the property. The court is essentially maintaining the status quo to protect the claimed asset until the matter can be fully adjudicated.
- Orders Related to the Best Interests of the Child
When minor or dependent children reside in the home, the primary consideration for the court is always the best interests of the child, pursuant to the Children’s Law Reform Act (CLRA).
Courts are hesitant to disrupt the stability of children’s lives by forcing a sudden move, particularly if the custodial parent is the non-titled partner. The court may grant the custodial parent (even if they are non-titled) temporary occupation of the home until the property issues are settled, using the factors relevant to exclusive possession for married couples as guidance:
- The possible disruptive effects on the child of a move to other accommodation.
- The availability of other suitable and affordable accommodation for the parent who would have to leave.
- The financial position of both parties.
- Any violence committed by one partner against the other or the children.
In such cases, the right to stay is not based on ownership, but on ensuring the stability and well-being of the children during the separation process.
Practical Steps to Protect Yourself After a Common-Law Separation
If you are facing a common-law separation and your name is not on the deed of the family home, immediate action is paramount.
Do’s: Preserve Evidence and Document Everything
- Document All Contributions: This is non-negotiable. Gather bank statements, e-transfer records, receipts, and invoices for any financial contribution you made to the property: mortgage payments, utility payments, property taxes, major appliances, furniture, and renovations.
- Log Non-Financial Contributions: Create a detailed timeline and log of your physical labour (renovations, landscaping) and domestic contributions (primary childcare, household management, foregone career opportunities). Attach photos or third-party affidavits where possible.
- Retain Communication: Keep copies of emails, texts, or social media posts where your partner referred to the home as “ours,” discussed joint financial goals, or acknowledged your sacrifices. This supports the Joint Family Venture and Actual Intention factors.
- Consult Legal Counsel Immediately: If you are threatened with eviction, time is of the essence. An experienced family lawyer can move quickly to apply for an injunction or an interim occupation order to prevent you from being locked out.
Don’ts: Avoid Actions That Weaken Your Claim
- DO NOT Vacate Prematurely: While leaving the home does not forfeit your financial claim to its value, it makes obtaining a possession order to return significantly more difficult, as the status quo will have been established. Seek legal advice before moving out.
- DO NOT Destroy or Conceal Documents: Be transparent and retain all records.
- DO NOT Engage in Conflict: Avoid conflict that could be used against you in court, especially if children are involved, as claims of violence or instability can impact a judge’s decision regarding possession.
The Best Defence: Drafting a Cohabitation Agreement
The complex, lengthy, and expensive path of proving unjust enrichment and constructive trust can be avoided entirely through proactive planning.
A Cohabitation Agreement—often referred to as a “common-law marriage contract”—is a written, legally binding document that specifies exactly how your financial and property matters will be handled if your relationship ends. It removes uncertainty and replaces complex case law with clear, pre-agreed terms.
What Your Cohabitation Agreement Should Cover:
- The Family Home: Clearly state who retains the right to possession, the terms of sale, or how one partner will buy out the other’s interest.
- Waiver of Equitable Claims: Partners can agree to waive their right to pursue costly unjust enrichment or constructive trust claims, streamlining separation should it occur.
- Division of Assets: Define which assets (pensions, investments, businesses, vehicles) are shared and how they will be valued and divided.
- Spousal Support: Set out whether spousal support will be paid, for how long, and under what conditions, or agree to waive spousal support entirely.
For the security of the family home and your future financial stability, drafting a comprehensive cohabitation agreement with independent legal advice is the single most effective investment common-law partners can make in their relationship.
In summary, for common-law partners in Ontario, the family home is not protected by automatic statutory rights; its security must be decisively claimed through the rigorous, evidence-based process of proving unjust enrichment and, where possible, establishing a Constructive Trust. Whether you are documenting your contributions to secure a monetary award or asserting your right to stay for the sake of your children, the critical takeaway remains: your protection is not automatic—it is earned through legal action. Do not delay. The time to safeguard your shelter and financial future is now. Consult with an experienced family law professional immediately to begin gathering your evidence, understand your claim, and transform a terrifying uncertainty into a clear, actionable legal strategy. The best defence against displacement is always preparation.
DISCLAIMER:
The information provided in this blog is for general informational purposes only and does not constitute legal advice. No attorney-client relationship is established through this writing. You should consult with a qualified attorney for advice tailored to your specific situation. The lawyer and their firm disclaim any liability arising from reliance on this blog or any other content on this website.