Common-Law Separation Agreements in Ontario Explained

Living together without marrying does not leave you without options when the relationship ends. It does mean the rules for dividing property are different from those that apply to married spouses.

This article explains what a separation agreement can cover for common-law partners in Ontario, where the rules differ from marriage, and what to think about before you sign.

Yes, common-law partners can sign one

Two people who lived together and are now living separate and apart may make an agreement setting out their rights and obligations. This applies to married and unmarried couples alike. Separation needs no court order and applies to married and common-law couples.

The agreement is a domestic contract, so it must be in writing, signed by the parties and witnessed to be enforceable.

How property differs from married spouses

Married spouses use equalization of net family property, where the spouse with the larger net family property pays the other an equalization payment. Ontario's equalization regime does not apply to unmarried couples. Common-law couples are not legally required to split property acquired while living together, and household items and other property belong to the person who bought them.

There is an important qualification. A partner who contributed to property the other partner owns may have a right to part of it. Unless the owner agrees to repay, the contributing partner may have to go to court to get the contribution back. The separation agreement is where these claims are settled.

What the agreement can cover

• Property and contribution claims, including who keeps what and any repayment.
• Spousal support, which is not automatic. A person may be entitled if they lived together as a couple for at least three years, or were in a relationship of some permanence and had a child together.
• Parenting: a parenting plan can set out each parent's time and who makes major decisions.

Child-related terms are not fixed by your agreement alone. A court may disregard a parenting provision if doing so is in the child's best interests, and may disregard an unreasonable child support provision.

Pensions and the Canada Pension Plan

Canada Pension Plan contributions made while partners lived together can be split after separation from a common-law relationship. Common-law partners generally must apply for a split within 48 months of starting to live apart, while divorced spouses and separated married spouses have no deadline unless the spouse dies. A private agreement generally cannot stop a split, because Ontario is not among the provinces with listed exceptions.

For workplace pensions, ask the pension administrator for information about the value of a pension. How a pension applies to your situation is worth confirming with a lawyer.

What to do next

• List what each of you owns and owes, and share it openly before signing.
• Note the date you started living apart, because the CPP split deadline for common-law partners runs from it.
• Each get your own legal advice, since Ontario guidance recommends separating spouses each have their own lawyer.
• Sign with a witness so the agreement meets the Act's requirements.

If you want the Family Responsibility Office to enforce the support terms, the agreement must first be filed with the Ontario Court of Justice or the Family Court of the Superior Court of Justice, and then registered with the Family Responsibility Office. The Family Responsibility Office enforces only the support terms, and a recipient can instead choose not to use it and go to court to enforce the separation agreement directly.

Frequently asked questions