Spousal Support for Common-Law Partners in Ontario: Who Qualifies

You lived with your partner, you never married, and now the relationship has ended. One of you may be worried about money, and the other may be worried about being asked to pay. A common question is whether being "common-law" is enough to claim spousal support in Ontario.

The answer depends on which law is being applied. Ontario uses different definitions of a common-law spouse for different purposes, so a test that works for one situation may not work for another. This article focuses on spousal support under the Family Law Act.

Who counts as a spouse for support

The Family Law Act has a general definition of "spouse" that covers two people who are married to each other, or who entered a marriage that is void or voidable. That general definition does not include unmarried partners.

Support is different. For support only (Part III of the Act), section 29 widens the meaning of spouse to include unmarried partners in two situations.

• You cohabited continuously for not less than three years.
• You cohabited in a relationship of some permanence and you are the parents of a child as set out in section 4 of the Children's Law Reform Act, however long you lived together.

"Cohabit" means living together in a conjugal relationship, whether or not the couple is married. Ontario's own public guidance describes the same picture: 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.

Why this test is not the same as other common-law tests

The three-year or child test belongs to Part III of the Family Law Act. It is not the test used elsewhere, and people often mix them up.

So you could be a common-law partner for tax purposes after a year, yet not qualify for spousal support under the Family Law Act until you reach three years or have a child in a relationship of some permanence.

The duty to support, and what affects the amount

Section 30 says every spouse, including a section 29 common-law spouse, must support themselves and the other spouse according to need, to the extent they are able. Qualifying as a spouse is therefore only the first step. Need and ability to pay still matter.

When a court sets the amount of support, one factor it considers is how long the two people cohabited. A longer relationship can matter to the result, but it is one factor among others, and every case turns on its own facts. A lawyer can tell you how the factors might apply to your situation.

Child support and property are separate questions

Child support does not depend on marriage. Every parent must support their child to the extent they are able, whether or not the parents were ever married.

Property is also different. The general married-only meaning of spouse governs property division and the matrimonial home. Ontario does not divide property between common-law couples when they separate, and each partner generally keeps what they bought. One exception is that a 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 repay the contribution.

Cohabitation agreements and waivers of support

Unmarried people who are cohabiting, or who intend to, may make a cohabitation agreement about their rights and obligations, including property and support. To be enforceable, it must be 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 waiver of support in such an agreement is not always the final word. A court may set aside a support provision or a waiver and order support, even if the contract says section 33 does not apply, if one of these is true:

• The provision or waiver results in unconscionable circumstances.
• The person who would receive support qualifies for support out of public money.
• Support under the contract is in default when the application is made.

A court may also set aside a contract, or a provision in it, if a party failed to disclose significant assets or debts that existed when it was made, or did not understand its nature or consequences.

What to do next

• Write down when you started living together and whether you ever lived apart.
• Note whether you have a child together and whether your relationship had some permanence.
• Gather any cohabitation agreement and the financial disclosure that went with it.
• Collect recent income, expense and debt information for both of you.
• Do not assume the tax or immigration definition of common-law applies to support.
• Speak with a family lawyer early, because the right steps depend on your facts and on any agreement you signed.

Frequently asked questions