- There is no single definition of a common-law partner in Ontario; each law and program sets its own test.
- Courts look at the whole relationship and weigh many factors together when deciding whether a couple cohabits.
- Support rights between partners are separate from program rules, and a support waiver can be set aside where a person qualifies for support from public money.
If you receive Ontario Works or ODSP and you live with a partner, you may worry about when the program will treat the two of you as spouses and how that might change your assistance. The honest answer is that it depends on the program's own definition and on the facts of your household.
This article does not set out the assistance rules themselves, which you should confirm directly with your caseworker or a legal clinic. Instead it explains how Ontario's other laws define a spouse, which helps you see why your answer may differ from what a friend or relative was told.
There is no single common-law definition
To cohabit means to live together in a conjugal relationship, whether or not the couple is married. Beyond that basic idea, each law sets its own test.
| Law or program area | Test for unmarried couples |
|---|---|
| Family Law Act, property and matrimonial home | Married spouses only |
| Family Law Act, support | Three years of continuous cohabitation, or some permanence plus a child together |
| Federal income tax | 12 months of conjugal cohabitation, or being a parent of the person's child |
| Pension Benefits Act | Three years, or some permanence if they are parents |
| Immigration regulations | Cohabiting in a conjugal relationship for at least one year |
Because the definitions vary, being a spouse under one law tells you little about another. How this applies to Ontario Works or ODSP depends on your situation, so it is worth confirming with your caseworker, in writing where possible, or with a lawyer.
Living together versus living in one household
Courts look at the whole relationship rather than at one fact. The factors include shared shelter, personal behaviour, services, social activities, economic support, children and how society sees the couple, and all are weighed together. Living apart does not automatically rule out cohabitation either.
That reasoning comes from family law. Whether a household is treated as a couple depends on the facts, so a roommate arrangement and a couple relationship can look very different. Describe your situation accurately and completely when you speak with the program.
Support between partners is a separate question
Even if a program treats you as a couple, that does not decide whether you owe each other support. Under the Family Law Act, every spouse must support themselves and the other spouse according to need, to the extent they are able, and for support this includes common-law spouses who meet the s. 29 test.
Support is not automatic. You must show a basis for it, such as caregiving or career sacrifices, need together with the other person's ability to pay, or an agreement. Child support does not depend on marriage, and every parent must support their child to the extent they are able.
If you sign a cohabitation agreement with a support waiver, a court may still set aside the waiver where it results in unconscionable circumstances, where the dependant qualifies for support from public money, or where support under the contract is in default.
Property and other areas where status matters
Being common-law also affects things outside assistance programs. Ontario says common-law couples are not legally required to split property acquired while they lived together. Furniture and household items generally belong to the person who bought them. 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 will not agree to repay.
- Pensions: a qualifying common-law spouse can count as the spouse for the pre-retirement death benefit if the member dies before the pension starts.
- Estates: a qualifying common-law spouse can apply for dependant's support from the estate within six months of the grant of letters probate or letters of administration.
- Intestacy: if there is no will, a common-law partner does not inherit automatically under the intestacy rules.
- Tax: once a couple cohabits, they are treated as still cohabiting unless they live separate and apart for at least 90 days because of a breakdown of the relationship.
How any of these fit your situation depends on the facts, so it is worth confirming with a lawyer.
What to do next
- Ask your caseworker, in writing, how the program decides who your spouse is.
- Ask what changes in your household you must report and by when.
- Keep records of who lives at your address and who pays which expenses.
- Report changes honestly and promptly, since mistakes can create problems later.
- Speak with a legal clinic or family lawyer if you are unsure, or if you are thinking about a cohabitation agreement.
Frequently asked questions
Does three years together make us spouses for Ontario Works or ODSP?
Not necessarily. The three-year test is the one used for support under the Family Law Act, and other laws use different tests. How this applies to Ontario Works or ODSP depends on your situation, so confirm it with your caseworker or a lawyer.
Can we avoid being treated as spouses by keeping separate bedrooms or finances?
Not on that basis alone. In family law, courts weigh many factors together, including shelter, economic support and how others see the couple. How an assistance program sees your household depends on the facts, so be accurate and complete and confirm with your caseworker or a lawyer.
Does my partner have to support me if I receive assistance?
It depends. Common-law spouses who meet the Family Law Act test owe support according to need and ability, but you must still show a basis for it.
Does a cohabitation agreement change how a program sees us?
A cohabitation agreement can set your rights between yourselves, including property and support. Whether it affects an assistance program is something to confirm with the program and a lawyer.
Sources
- Family Law Act, R.S.O. 1990, c. F.3, s. 1(1) (e-Laws) — Ontario e-Laws
- Ontario.ca – Spousal support — ontario.ca
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
- Court of Appeal for Ontario – Climans v. Latner, 2020 ONCA 554 — ontariocourts.ca
- Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 248(1) "common-law partner" — Justice Laws (federal)
- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 1(1) — Justice Laws (federal)
- Pension Benefits Act, R.S.O. 1990, c. P.8, s. 1(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 57, 61(1) (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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