Common-Law Spousal Support in Ontario: Your Rights After Separating

If you lived with a partner without marrying, you may wonder whether the end of the relationship leaves you with any claim for support. In Ontario, the answer can be yes, but it depends on how long you lived together and whether you had a child.

This article explains who may be eligible, how amounts are generally approached, and how property differs from support for common-law couples. A lawyer can confirm how the rules apply to you.

Who may be eligible

Ontario's guidance says you may be eligible for spousal support if you were married, if you lived together as a couple for at least three years, or if you were in a relationship of some permanence and had a child together.

The precise legal wording that applies to unmarried partners is worth confirming with a lawyer. It is worth having a lawyer confirm how it applies to your relationship, particularly if you were together for less than three years.

Entitlement comes before amount

Being eligible is not the same as being entitled. Entitlement has three possible bases: compensatory (loss or disadvantage from roles in the relationship), non-compensatory (need), and contractual. A contractual basis can come from a formal domestic contract or from an implied or informal agreement.

An income gap on its own does not create entitlement. Entitlement must be proven or agreed before the Spousal Support Advisory Guidelines formulas apply.

How the amount is approached

Ontario's guidance says the amount depends on factors such as the income gap, who cared for any children, each person's age, roles during the relationship, health, and ability to support themselves. Partners can agree on support in a separation agreement or have a judge decide.

The Spousal Support Advisory Guidelines are not law, but judges often base decisions on them. They were designed for the federal Divorce Act, and courts and lawyers also often use them under provincial legislation such as Ontario's Family Law Act.

• Without children, the guidelines range is 1.5% to 2% of the difference in gross incomes for each year of cohabitation, capped at 50%.
• Without children, duration is 0.5 to 1 year for each year of cohabitation, but support is indefinite if the marriage lasted 20 years or more, or under the rule of 65: the marriage lasted at least five years and the years of marriage plus the recipient's age at separation total 65 or more.
• With children, the range leaves the lower-income recipient with 40% to 46% of the couple's combined net disposable income.
• Under the without-child-support formula, short marriages produce very limited awards, if there is entitlement at all. The guidelines also recognize a compensatory exception for short and short-to-medium marriages without children, which is assessed individually and can fall outside the formula range.

These are only guideline figures. The formulas do not apply mechanically at very high or low incomes. Ontario's linked online calculator considers only employment income and simple calculations.

Property is a different story

Common-law partners may claim spousal support, but they are not legally required to split property acquired while living together. Property generally belongs to whoever bought it. Keep records of who paid for what, since that can matter.

Support is also separate from property in how it is paid. When a court orders support in Ontario, the order is automatically filed with the Family Responsibility Office, which collects payments from the payor and sends them to the recipient. A separation agreement is not filed automatically; it must be filed with a court and then registered before the office can enforce it.

Enforcement, changes and tax

Once an order is filed, the Family Responsibility Office has several enforcement tools, including support deduction orders sent to employers and bank garnishment. Its enforcement costs nothing for the spouse receiving support.

• The office cannot change support terms. Only a court can change an order, through a motion to change.
• A variation generally requires a material change in circumstances, while a review is more like an initial application.
• Support paid without a court order or written agreement is not subject to the support-payment tax rules.
• Whether support is taxable to the recipient and deductible by the payer depends on conditions such as the order or agreement clearly stating the spousal amount.

How tax and changes apply to you depends on your situation, so it is worth confirming with a lawyer or accountant.

What to do next

• Write down your move-in and separation dates to show how long you lived together.
• Note whether you had a child together.
• Gather income records, and records of who paid for major purchases.
• Record any career or education sacrifices you made for the relationship or children.
• Keep any written or informal agreements about support.
• Speak with a lawyer before signing a separation agreement.

Frequently asked questions