Can You Stay in Your Common-Law Partner's Home After a Breakup in Ontario?

You lived with your partner for years, but the house is in their name and you were never married. Now the relationship is over, and you are wondering whether you can stay, or whether you can be told to leave.

The short answer under Ontario's family statute is that the special home rights belong to married spouses. That can feel harsh, but other routes exist. This article explains the rule, how it differs for married couples, and what unmarried partners can look at.

Why the law treats married and unmarried partners differently

The Family Law Act has a general definition of spouse. It covers only two people who are married to each other, or who entered a void or voidable marriage in good faith, and it controls Part I (Family Property) and Part II (Matrimonial Home).

A matrimonial home is property a person has an interest in that the person and their spouse ordinarily occupied as their family residence. Because Part II uses the married-only definition, its possession rights do not cover unmarried partners.

Ontario's guidance on dividing property discusses the family home only for married spouses. Common-law partners have no statutory right to share or stay in a home owned by the other partner. This is true however long you lived together.

How married spouses are treated

Married spouses have an equal right to possession of the matrimonial home. Regardless of who owns it, a court may give one spouse exclusive possession of all or part of it.

When a court decides exclusive possession between married spouses, it considers a list of factors:

• The best interests of the children.
• Any existing orders.
• Each spouse's finances.
• Any written agreement between them.
• Whether other suitable and affordable housing is available.
• Any violence against a spouse or child.

An unmarried partner cannot rely on these provisions. That is why the question of who holds title matters so much more for common-law couples.

Routes an unmarried partner may still have

Not having a right to stay does not mean you have no options. Three are worth knowing about.

• Safety: a court may make a restraining order where you have reasonable grounds to fear for your own or a child's safety. It can be made against a person who is or was cohabiting with you for any period of time, so it is not limited to married spouses.
• Contribution to the home: a partner who contributed to property the other owns may have a right to part of it. If the owner will not agree to repay, you may have to go to court.
• A cohabitation agreement: it can deal with ownership or division of property, among other matters.

The details of restraining orders can change and depend on your situation, so it is worth confirming the current rules with a lawyer or the court before relying on them.

For contribution claims, the basic two-year limitation period under the Limitations Act, 2002 can apply to many civil claims between former partners, and it runs from the day the claim was discovered. Which period applies to a claim about a home depends on the facts, so get advice early rather than waiting.

Cohabitation agreements: planning ahead or fixing it now

Two unmarried people who are cohabiting or intend to cohabit may make a cohabitation agreement. It can cover their rights and obligations during the relationship, on separation or on death, including ownership or division of property and support. Because the wording covers people already cohabiting, it can be signed after you have moved in.

Such an agreement is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance advises that each partner speak to a different lawyer and that you exchange financial information before signing. A court may set aside an agreement if a party failed to disclose significant assets or debts, or did not understand its nature or consequences.

An agreement cannot fix decision-making responsibility or parenting time for children. If the couple later marries, the cohabitation agreement is deemed to be a marriage contract. At that point, any term trying to limit a spouse's matrimonial home rights is unenforceable.

Support is separate from the right to occupy

Even without a right to stay in the home, you may have support rights. For spousal support, the Act widens the meaning of spouse to include unmarried people who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are parents of a child. Support is not automatic; you must show a basis for it, such as caregiving or career sacrifices, or need together with the other person's ability to pay.

Child support does not depend on marriage. Every parent must support their child to the extent they are able. These claims are about money, not about who lives in the house.

What to do next

• Find out whose name is on title and whether you ever contributed money or work to the home.
• Gather records of payments, renovations, mortgage help and shared expenses.
• Keep any written agreement you and your partner signed.
• If you fear for your safety or a child's, seek help right away and ask about a restraining order.
• Do not wait to get advice, because time limits can apply to some claims.
• Speak to a lawyer about your housing, property and support options together.

Frequently asked questions