Common-Law Property Rights in Ontario: Who Keeps What After a Breakup

When an unmarried couple separates, the first question is often practical: who keeps the house, the furniture, the car and the savings? Many people assume that living together for years gives the same rights as marriage. In Ontario, for property, it does not.

This article explains the general rules, the main exception, and how jointly held property and shared accounts work. It also explains why property and support are different questions, and how a written agreement can settle things in advance. Your own facts matter, so a lawyer can confirm how this applies to you.

Why marriage matters for property division

The Family Law Act defines "spouse" as two people who are married to each other, or who entered into a marriage that is voidable or void. That definition governs property division under Part I and the matrimonial home under Part II, and it does not include unmarried partners.

The Act also defines the matrimonial home as property a person and their "spouse" ordinarily occupy as their family residence. Because "spouse" there means a married spouse, the matrimonial home protections do not cover unmarried partners.

Who keeps what when common-law partners separate

Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share in the other's increase in property value.

That includes everyday items. Furniture, household items and other property belong to the person who bought them. In practice, proof of who paid for what can matter a great deal.

• Keep receipts, bank records and statements showing who paid for major items.
• Note which items were gifts or were owned before you moved in together.
• Remember that the house you lived in is not treated as a matrimonial home if you were not married.

The exception: contributions to the other partner's property

A common-law partner who contributed to property the other partner owns may have a right to part of it. Unless the owner agrees to pay the contribution back, the partner may have to go to court.

Whether a contribution gives rise to a claim, and what it is worth, depends on the facts. This is an area where it is worth getting legal advice early, before anyone sells or transfers the property.

Joint property, joint accounts and shared debts

If you own property together, how title is held matters. Joint tenancy is co-ownership with a right of survivorship. Under a tenancy in common, each owner holds an undivided interest that does not end on their death, so there is no right of survivorship.

One joint owner borrowing against the property does not necessarily end the joint tenancy. In the land titles system, a charge registered by fewer than all the joint tenants does not automatically sever it, and whether the owners intended to sever is a factual question for the courts.

No Ontario statute makes a common-law partner liable for the other's sole debts. Liability comes from the credit contract, such as being a co-borrower or guarantor. A bank may also use a right of offset to take money from a joint account for one holder's debt, so check your accounts before you separate.

Support is a separate question

Not having property division rights does not mean you have no support rights. For support only, the Family Law Act widens "spouse" to include two unmarried people who have cohabited continuously for at least three years.

Unmarried partners are also spouses for support, however long they lived together, if they cohabited in a relationship of some permanence and are the parents of a child as set out in the Children's Law Reform Act. Every parent must also support their child to the extent they are able, whether or not they were ever married.

Setting the rules in advance and what to do next

Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement under the Family Law Act about their rights and obligations, including property and support. To be enforceable it must be 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. If you later marry each other, the agreement is deemed to be a marriage contract.

• List what each of you owns and what you bought together.
• Gather receipts and records of contributions to property the other owns.
• Check how title to any real estate is held.
• Review joint accounts and cards, and note who is a co-borrower.
• Speak with a lawyer before moving out, selling or signing anything.

Frequently asked questions