Can a Common-Law Partner Be Evicted From the Deceased's Home in Ontario?

When an unmarried partner dies, the survivor often faces grief and housing uncertainty at the same moment. The home may be in the deceased's name alone, other family members may be asking when you will leave, and it is not obvious who has the authority to decide.

This article explains what Ontario's guidance says about common-law partners and estates, how to work out who owns the home, and what to do before anyone changes the locks. It is general information. The details of your situation matter a great deal, so early legal advice is worth getting.

First question: who owns the home now

Everything turns on how the home was owned. If you and your partner were joint tenants, the surviving co-owner inherits the share. Whether that settles your right to stay depends on the title and the estate, so it is worth confirming with a lawyer. If your partner was a tenant in common, the share becomes part of the estate. If your partner was the sole owner, how the home passes depends on the will or the intestacy rules, and a lawyer can confirm this for you.

A title search will show how ownership is registered. A lawyer can obtain it quickly. Do not rely on memory or what relatives say.

If there is no will: what a common-law partner gets

Ontario's guidance says directly that under the intestacy rules a common-law spouse does not inherit under the Succession Law Reform Act. That is a hard point for many couples who lived together for decades. The spouse's preferential share of $350,000 for deaths on or after March 1, 2021, and the sharing of any balance with children, are rules for a spouse, and they do not give a common-law partner an automatic entitlement under that Act.

That does not mean you have no options. You may be named in a will, hold title to the home, or have other claims against the estate. The Succession Law Reform Act is only one part of the picture, and a lawyer can tell you what else may apply. Some claims have short time limits, so do not wait.

Who can make decisions about the home

The estate trustee has authority to wind up the deceased's affairs, pay taxes and debts, collect assets and distribute the residue to those entitled. Until someone is appointed, there may be no one with clear authority to ask you to leave.

With no will, the spouse or common-law partner usually has first right to apply to administer the estate. If there is none, a close adult relative such as a child, parent, grandchild, sibling, nephew or niece can apply, and the court may appoint the relative it considers most appropriate. If no eligible person can administer the estate, the Office of the Public Guardian and Trustee may apply to act, including where the deceased owned Ontario real estate.

Probate is normally required if the deceased owned real property that does not pass to another person by right of survivorship, and a certificate should be obtained before anyone signs an Agreement of Purchase and Sale. That means a quick sale is often not possible, which can give you time to get advice.

If the home was rented

Sometimes the home was rented in the deceased's name. Under section 91 of the Residential Tenancies Act, if a tenant dies and there are no other tenants of the unit, the tenancy is deemed terminated 30 days after the death. The landlord and the executor or administrator can agree to different terms.

There is a protection for some surviving spouses. A surviving spouse who was only an occupant, not a tenant, becomes a tenant on the tenant's death unless they vacate within 30 days. This does not apply to social housing, care homes or certain government housing, and other occupants who are not spouses generally have no right to stay once the tenancy ends. Whether an unmarried partner counts as a spouse for this purpose should be checked with a lawyer. The Landlord and Tenant Board has also noted recent changes to the Act, so the current wording should be confirmed.

If you must move, the landlord has to allow the estate's representative reasonable access to remove property during the 30 days. After that the landlord may sell, keep or dispose of the property, and the estate's representative can claim for up to 6 months after the death.

What to do next

• Do not move out, sign anything or hand over keys until you have taken advice.
• Find out whether there is a will, and where the original is kept.
• Order a title search to see how the home was owned.
• Keep records of how long you lived there and what you contributed to household costs.
• Keep paying the household bills you can, and keep receipts.
• Do not remove valuables or personal items belonging to the estate.
• See an Ontario lawyer soon, because some claims against an estate have short time limits.

Frequently asked questions