Common-Law Pension Rights in Ontario After Separation or Death

If you are in a common-law relationship, your partner's workplace pension may be one of your family's largest assets. You may wonder whether you can share it if you separate, or receive a survivor benefit if your partner dies.

The answer depends on which law governs the pension and how it defines a spouse. This article explains the family law and estate rules that surround pensions, and what to ask before you assume you are covered or not.

Who counts as a common-law spouse depends on the law

There is no single definition. For support under the Family Law Act, a spouse includes two unmarried people who have cohabited continuously for at least three years, or who cohabited in a relationship of some permanence and are parents of a child as set out in the Children's Law Reform Act. For federal tax, the period is 12 months of conjugal cohabitation, or sooner if you share a child.

A pension plan or pension statute may use its own definition. Do not assume that being common-law for tax or support purposes gives you spouse status under a particular plan. Ask the plan administrator for the plan text and the definition it applies.

After separation: property and support

Under the Family Law Act, the general meaning of spouse covers married persons and does not include unmarried partners for property division. Ontario does not divide property between common-law couples when they separate; each partner keeps what they bought, and neither has a right to share the other's increase in value.

There is an exception. A common-law partner who contributed to property the other owns may have a right to part of it, and may have to go to court unless the owner agrees to pay the contribution back. Whether and how this applies to a pension is a legal question that turns on the facts.

Support is separate from property. A common-law spouse under section 29 must support the other according to need, to the extent they are able. When the court sets the amount of support, it considers how long the two of you cohabited. How pension income fits into that picture depends on your situation, so it is worth confirming with a lawyer.

After death: wills, intestacy and dependant support

A common-law spouse does not inherit under the Succession Law Reform Act if there is no will. A married spouse with no issue takes the whole estate, but these spousal entitlements do not apply if the spouses were separated at the time of death. If there is a will, your partner can name you as a beneficiary, so a current will matters.

There is a separate route. For dependant support, the meaning of spouse follows Family Law Act section 29, so it includes unmarried partners who cohabited for three years or had a child in a relationship of some permanence. If the deceased did not make adequate provision for the proper support of a dependant, the court may order support out of the estate.

• An application may not be made more than six months after the grant of letters probate or letters of administration.
• The court may allow a late application, but only for the part of the estate not yet distributed.
• The court considers indirect and non-financial contributions and, for a spouse, how long you cohabited.
• Certain assets outside the estate, such as joint accounts, joint tenancy property and life insurance the deceased owned, are counted for the claim.
• Once notice is served, the personal representative must generally not distribute the estate until the court deals with the application.

Whether pension money paid directly to a named person is treated as part of the estate for these purposes is not something to assume. Ask a lawyer.

Protecting yourself with an agreement

Two unmarried people who are cohabiting, or intend to, may make a cohabitation agreement about their rights and obligations, including property and support. It 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 exchange financial information before signing.

A court may set aside a domestic contract if a party failed to disclose significant assets, debts or liabilities, or did not understand its nature or consequences. If you want pension arrangements addressed, disclose the pension fully. If the parties later marry, the agreement is deemed to be a marriage contract.

What to do next

• Ask the plan administrator for the plan text, its spouse definition and any survivor benefit rules.
• Check which beneficiary is named on the pension, life insurance and registered accounts.
• Make or update your will so it reflects your wishes.
• Collect proof of how long you lived together, such as shared leases, bills and documents showing the same address.
• Consider a cohabitation agreement, with each of you getting separate legal advice.
• If your partner has died, the six-month limit for a dependant support application runs from the grant of letters probate or letters of administration, not from the date of death. A court may allow a late application, but only for the part of the estate not yet distributed, so get advice quickly.

Frequently asked questions