Common-Law Partners and Property Rights in Ontario

If you are leaving a common-law relationship, you may have heard that you are entitled to half of everything. For married spouses, that is close to how the law works. For common-law partners in Ontario, it is not.

That does not mean you have no claim. It means your claim usually has to be built differently, based on what you put into property and what the other person kept. This article explains the difference and the practical steps to take.

Why equalization does not apply to common-law couples

Married spouses must generally split property acquired during the marriage equally when the marriage ends. The calculation is called equalization: the larger net amount minus the smaller net amount, divided by two.

Common-law couples are not legally required to split property acquired while they lived together. In practice, that often means that whoever owns an item, account or home keeps it unless the other partner can show a legal basis for a claim.

What claims a common-law partner may still have

A partner who contributed to property the other partner owns may have a right to part of it. Whether a particular contribution is enough depends on the facts, so it is worth confirming with a lawyer.

Because there is no automatic split, you may need to go to court to recover your contribution. Trust and unjust enrichment claims are among the matters the Superior Court of Justice hears.

• Money you put toward a home that is in your partner's name only.
• Renovations or unpaid work that increased the value of property your partner owns.
• Shared bank accounts, vehicles or savings, where it is unclear who owns what.

Married and common-law: a quick comparison

Time limits and where to start

For married spouses asking a court to decide an equalization payment, the application must be made within six years from the day of separation or two years from the day the divorce is final, whichever comes first. That rule is for equalization, so it does not simply carry over to common-law claims.

The time limit for a common-law property claim depends on the type of claim and your facts. Because you may lose rights if you wait, it is sensible to get advice early rather than assume you have plenty of time.

A family case usually starts in the municipality where you or your partner lives. The Family Court Branch of the Superior Court of Justice sits in 25 locations, including Barrie, Lindsay and Peterborough, and it is the only court in Ontario that can hear all types of family law cases. If you are unsure where to file, you can call the family court office in your area.

Retirement savings and other planning points

Spousal RRSP rules also apply to common-law partners. If you withdraw from a spousal or common-law partner RRSP, the person who contributed may have to report the withdrawal if they contributed in the year of withdrawal or either of the two preceding years. Otherwise the annuitant generally reports it. Tax consequences like this can affect how a settlement should be structured, so an accountant can help.

What to do next

• List what you own and what your partner owns, and who paid for each item.
• Collect proof of your contributions, such as bank records, receipts, mortgage payments and renovation costs.
• Note the date you separated and who has moved out.
• Do not sign a separation agreement or transfer any property until you understand your position.
• Speak to a family lawyer about your claim and the time limits that may apply.

Frequently asked questions