Spousal Support for Common-Law Partners in Ontario After Separation

If you earned less than your partner, stayed home with children, or put your career on hold, you may wonder whether you can claim support now that the relationship has ended. Being unmarried does not rule that out in Ontario.

This article explains who qualifies, the reasons support may be ordered, how the amount is approached, the time limits that apply, and how common-law rights differ from those of married spouses.

Who qualifies as a spouse for support

For support, the Family Law Act extends the word spouse to 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.

Every spouse under that definition has an obligation to provide support for themselves and for the other spouse, in accordance with need, to the extent they are capable of doing so. If you do not meet either test, you may not qualify for spousal support, so the dates and facts of your relationship matter.

Living in separate homes does not automatically defeat a claim. The Court of Appeal has found spouses under this definition even though they kept separate homes, while noting there needs to be some element of living together under the same roof.

Reasons support may be ordered

Meeting the definition makes you eligible to ask. Ontario's guidance says you must also show one of the following:

• Relationship responsibilities, such as childcare, prevented you from building your own career.
• The separation left you in need and your spouse can pay.
• An agreement provides for support.

The Family Law Act also lists the purposes of a support order. They include recognizing your contribution to the relationship and its economic consequences for you, sharing the costs of child support equitably, helping you become self-sufficient, and relieving financial hardship.

How the amount and length are approached

The court considers all the circumstances, including current and future assets and means, each person's capacity to contribute to their own support, age and health, and the standard of living you had while living together. Ontario's guidance adds factors such as the income difference, children and who cares for them, roles during the relationship and ability to support oneself.

The federal Spousal Support Advisory Guidelines are only guidelines, but lawyers and judges often use them. They measure the length of the relationship from the start of cohabitation to separation, and usually add together periods of cohabitation if a couple separated and reconciled. Support is indefinite for relationships of 20 years or longer, or where the Rule of 65 applies, which does not apply to relationships under five years.

Because the start date of cohabitation can change the duration, it is worth proving it carefully. In one Court of Appeal case, correcting an overly early start date meant indefinite support was reduced to ten years.

Time limits and agreements

There is no limitation period for a proceeding to obtain support under the Family Law Act, so a support claim is not barred by the usual two-year limit. You must still show you qualified as a spouse, and the court may weigh delay. Do not treat that as a reason to wait.

Other claims are different. Non-support claims between former partners, such as unjust enrichment, generally follow the basic two-year period from discovery, with a 15-year ultimate period. If your partner has died, a dependant's support claim against the estate generally cannot be made more than six months after the grant of probate or letters of administration, with limited power to extend.

If you signed a cohabitation agreement or separation agreement, it may deal with support. A domestic contract is unenforceable unless it is in writing, signed and witnessed. A court can set aside a support waiver if it results in unconscionable circumstances, if the dependant qualifies for public support allowances, or if there is a default in payment when the application is made. A court may also set aside a contract if a party failed to disclose significant assets or debts, or did not understand its nature or consequences. In one case, property clauses were set aside while a support waiver was left in place because there was no finding the parties misunderstood it.

What a common-law partner is not entitled to

Property claims between unmarried partners can be based on unjust enrichment. Where there is a joint family venture, the remedy can be a proportionate share of the wealth accumulated linked to contributions, but there is no presumption of a joint family venture.

What to do next

• Write a timeline of when you began living together, any separations, and the date you separated.
• Gather financial records: tax returns, pay records, bank statements, and documents showing who paid for what.
• Note any career or education choices you made because of childcare or household roles.
• Collect any cohabitation or separation agreement and check whether it was signed and witnessed.
• Be cautious signing a separation agreement without understanding it, full financial disclosure and freedom from pressure.
• Speak to a family lawyer about whether you qualify and how your facts fit the tests; if support is ordered through an agreement, it can be filed with the court and registered with the Family Responsibility Office to be enforced.

Frequently asked questions