Who Keeps the Furniture and Belongings When Common-Law Partners Separate in Ontario?

Splitting up is stressful enough without arguing over the couch, the kitchen table or who gets the television. If you and your partner were never married, the rules in Ontario work differently from what many people expect.

This article explains how household contents and personal property are generally treated when common-law partners separate in Ontario. It also covers joint bank accounts and credit cards, and how a cohabitation agreement can change the starting point.

Ontario's property-division rules cover married spouses only

Under the Family Law Act, a "spouse" for the property-division rules and the matrimonial home rules means two people who are married to each other, or who entered into a marriage that is voidable or void. Unmarried partners are not included.

In practice, this means 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.

This can feel surprising if you lived together for many years. The length of your relationship does not, on its own, create a right to split belongings the way marriage does. Other areas of law, such as support, may use a different definition of spouse, so it helps to look at each issue separately.

The general rule: belongings go to whoever bought them

Ontario's guidance says furniture, household items and other property belong to the person who bought them, and common-law couples have no right to split an increase in the value of property.

So the starting question is usually simple: who paid for the item? Some practical points follow from that:

• Items you owned before the relationship are generally yours.
• Items one of you bought during the relationship generally belong to the buyer.
• Gifts are a common source of disagreement, so keep any messages or records showing who was given what.
• Receipts, bank statements and online order histories can help show who bought an item.

Items bought together or paid for from a shared account can be harder to sort out. How they are treated depends on the facts, and a lawyer can help you understand your position.

The exception: contributing to property the other person owns

There is an important exception. 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.

For example, you might have helped pay for or improve something that is legally in your former partner's name. Whether you have a claim, and how much, depends on your particular circumstances. If you think this applies to you, keep records of what you contributed and get legal advice before assuming either way.

The matrimonial home protections also do not help unmarried partners, because the definition depends on the married-spouse meaning of "spouse". Ownership of a home is a separate and often bigger question than furniture, and it is worth discussing with a lawyer early.

Joint bank accounts and credit cards

Money and debt can be tangled together even when belongings are not. Joint bank account holders share responsibility for all transactions, and an overdraft may create a debt for everyone on the account.

Credit cards depend on how the account is set up:

Contact your bank or card issuer to understand how your accounts are set up, and think carefully before closing or emptying a joint account without talking to a lawyer. Responsibility for a debt generally comes from the credit contract you signed, not from simply living together.

A cohabitation agreement can set different rules

Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support. Support terms have limits, though: a court may set aside a support provision or a waiver of support in a domestic contract and order support if it results in unconscionable circumstances, if the dependant qualifies for support out of public money, or if support under the contract is in default when the application is made. An agreement is also unenforceable unless it is in writing, signed by the parties and witnessed.

Ontario's guidance says both partners must sign in front of a witness. It also advises that each partner speak to a different lawyer and that the partners exchange financial information before signing.

There are other limits. A court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, debts or other liabilities that existed when it was made. It may also do so if a party did not understand its nature or consequences. If you later marry each other, the agreement is deemed to be a marriage contract.

What to do next

• Make a list of the major items and note who bought each one.
• Gather receipts, bank statements and messages that show who paid or who received an item as a gift.
• Record anything you paid toward property that is in your former partner's name.
• Find out whether you hold any joint accounts or joint credit cards, and in what capacity.
• Check whether you ever signed a cohabitation agreement.
• Avoid taking or selling items in anger; try to agree on a written list instead.
• Speak with a lawyer if the property is valuable or you made contributions to something your partner owns.

If you can agree on who keeps what, putting it in writing helps prevent later disputes. A lawyer can explain how this applies to your situation.

Frequently asked questions