Can a Common-Law Partner Get Spousal Support in Ontario?

You have lived with a partner for years, the relationship has ended, and you are not sure whether you have any right to support because you never married. Many people assume that unmarried partners have no claims at all, or that they have exactly the same claims as married couples. Neither is quite right.

In Ontario the answer depends on what you are asking for. Support, property and tax benefits each use their own definition of a common-law partner. This article focuses on spousal support under the Family Law Act, and explains how it differs from the other areas.

Who counts as a spouse for support

The Family Law Act generally defines a spouse as a person who is married to another, or who entered into a marriage that is voidable or void. For support only, section 29 widens that meaning to include two unmarried people who have cohabited continuously for not less than three years. To cohabit means to live together in a conjugal relationship, whether or not you are married.

There is also a route that does not depend on how long you lived together. Unmarried partners are spouses for support purposes if they cohabited in a relationship of some permanence and are the parents of a child as set out in section 4 of the Children's Law Reform Act. Ontario's public guidance summarizes this by saying you may be entitled to spousal support if you were married, lived together as a couple for at least three years, or were in a relationship of some permanence and had a child together.

The duty to support and how the amount is set

Every spouse, including a common-law spouse under section 29, must support themselves and the other spouse according to need, to the extent they are able. Being a spouse does not guarantee an order. It opens the door to a claim, and the need and ability to pay still matter.

When a court sets the amount, one factor it considers is how long the two people cohabited. Length of time together affects the amount, but whether you qualify as a spouse for support in the first place depends on the three-year or child routes described above. Other circumstances also matter, and a lawyer can explain how they apply to your facts.

Support is not property: what common-law partners do not get

Spousal support is separate from dividing property. The wider definition of spouse applies to support only. The general definition, which governs property division and the matrimonial home, does not include unmarried partners. Ontario does not divide property between common-law couples when they separate. Each partner keeps what they bought, and neither has a right to share in the other's increase in property value.

The matrimonial home protections also do not cover unmarried partners, because they rely on the married-spouse meaning. One exception is worth knowing: a common-law partner who contributed to property the other owns may have a right to part of it, and may have to go to court if the owner does not agree to pay the contribution back. Whether that applies to you depends on the facts.

Child support and other definitions

Child support is a separate obligation. Every parent must support their child to the extent they are able, whether or not the parents were ever married. So a child's claim does not depend on whether the three-year rule is met.

Be careful not to mix up definitions from other laws. The Income Tax Act treats a person as a common-law partner after 12 months of conjugal cohabitation, or sooner if the partner is a parent of the taxpayer's child. Immigration rules use at least one year. Those tests serve tax and immigration purposes and do not decide whether someone is a spouse for support under the Family Law Act. Likewise, meeting the Family Law Act test does not automatically make you a common-law partner for those other purposes.

Cohabitation agreements and waivers of support

Two unmarried people who are cohabiting, or intend to, may make a cohabitation agreement about their rights and obligations, including property and support. It is unenforceable unless it is in writing, signed by the parties and witnessed. Ontario's guidance also advises that each partner speak to a different lawyer and that you exchange financial information before signing.

A signed waiver is not always the end of the story. A court may set aside a support provision or a waiver of support 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. A court may also set aside a domestic contract if a party failed to disclose significant assets or debts, or did not understand its nature or consequences.

• A cohabitation agreement cannot deal with decision-making responsibility or parenting time for children.
• A court can disregard child support terms that are unreasonable under the child support guidelines.

What to do next

• Work out your start date for living together and whether the time was continuous.
• Note whether you and your partner have a child together.
• Gather any cohabitation agreement, along with financial records for both of you.
• Write down what you own, what you owe and what you contributed to property the other person owns.
• Speak with a family lawyer before signing anything or assuming a deadline has not passed.

Your own situation may fall near the edge of these rules, for example if you lived apart for periods. A lawyer can confirm how the rules apply and what steps are open to you.

Frequently asked questions