Common-Law Separation in Ontario: Property and Support Rights

Ending a relationship is hard enough without wondering whether the rules you have heard about apply to you. If you and your partner were never married, many of the property rules people talk about work differently for you.

This article explains, in general terms, what unmarried partners in Ontario can and cannot claim when they separate, and where to look for help. Your situation depends on its facts, so treat this as a starting point.

Why equalization does not apply to unmarried partners

Equalization is the process that lets the married spouse with the smaller net family property claim one-half of the difference between the two spouses' net family properties. That process is built for married spouses. For unmarried couples, Ontario's guidance says common-law couples are not legally required to split property acquired while living together, and items generally belong to whoever bought them.

That does not mean you are left with nothing. A partner who contributed to the other's property may need to go to court to recover that contribution. What counts as a contribution, and how you prove it, depends on the facts, so records matter.

• Bank statements showing payments toward a home, renovation or vehicle.
• Receipts and invoices for larger purchases.
• Title documents, leases and loan agreements.
• Messages or emails about who was paying for what.

Support claims for common-law partners

For support claims, the Family Law Act's definition of spouse also covers two unmarried people who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. To cohabit means to live together in a conjugal relationship, whether within or outside marriage.

Because of this, the date your cohabitation ended matters to whether a common-law partner can claim support. If you are close to a threshold, get advice early and write down your timeline.

The home you shared

The matrimonial home possession rights in Part II of the Family Law Act apply to spouses as defined in s. 1(1), meaning married people. Ontario's guidance tells people who are not married to contact a lawyer about their rights and options regarding the home. Your position often depends on whose name is on the title or the lease, and on whether you contributed to the property.

If you share a rented home, the lease matters. Under a joint tenancy, where all tenants share a single tenancy agreement, the tenants are jointly and severally liable for the entire rent, so the landlord can pursue any one of them for the full amount. A tenant ending a monthly tenancy must give at least 60 days' notice on Form N9.

A tenant who, or whose child living with them, is a victim of sexual or domestic violence and fears harm can end the tenancy at any time on 28 days' notice using Form N15, as long as the notice comes with a Tenant's Statement, or with a restraining order or peace bond issued within the last 90 days. If the N15 is not signed by all the tenants in a joint tenancy, the tenancy continues for the tenants who did not sign it.

Agreements, children, debts and taxes

• A separation agreement can be made by two people who cohabited and are living separate and apart, but it is unenforceable unless it is in writing, signed by the parties and witnessed.
• A court may set aside a separation agreement if a party failed to disclose significant assets, debts or other liabilities.
• A child's parents are equally entitled to decision-making responsibility for the child, but if parents live separate and apart and the child lives with one parent with the other's consent, implied consent or acquiescence, the other parent's decision-making right is suspended until a separation agreement or order provides otherwise, and parenting time is not suspended.
• In parenting cases, the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
• Co-borrowers on a joint credit card are equally responsible for the whole balance, while an additional cardholder is not responsible for repaying it.
• For CRA purposes, the effective date of separated status is the day you started living apart.

What to do next

• Write down when you started living together and when you separated.
• Collect proof of who paid for property, renovations and debts.
• Check who is named on the title, lease, loans and credit cards.
• Contact a Family Law Information Centre, which is a free service with information and referral coordinators and duty counsel provided by Legal Aid Ontario.
• Speak with a lawyer about support and any claim for your contributions, and with the CRA or an accountant about tax reporting.

Frequently asked questions