Constructive Trust Claims on a Partner's Home in Ontario

You moved into your partner's house, or you helped pay for it, fix it up or keep it running. Your name was never on title. Now the relationship is ending and you are wondering whether all of that effort simply stays with the person who owns the home.

The short answer is that it depends on your facts. Ontario's property-sharing rules for married couples do not apply to you, but there is a path for partners who contributed to something the other person owns. This article explains the starting point, the exception, and what to gather before you talk to a lawyer.

The starting point: no automatic property division

Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share in the other's increase in property value. Furniture, household items and other property belong to the person who bought them.

This is different from married couples. The Family Law Act uses a definition of "spouse" for property division that covers people who are married to each other, and it does not include unmarried partners. The same is true of the matrimonial home protections, which do not cover unmarried partners.

So if your partner alone is on title, you cannot simply claim half because you lived there together. That is why the exception matters.

The exception: contributing to property your partner owns

A common-law partner who contributed to property the other partner owns may have a right to part of it. Unless the owner agrees to pay the contribution back, the partner may have to go to court.

You may see this kind of claim described as a "constructive trust" or as "unjust enrichment." In plain terms, the idea is that it would be unfair for one person to keep the full benefit of your contribution to the home. Whether a court would recognize an ownership interest, and in what form, turns on the specific facts. A lawyer can review your situation and tell you how the law applies to it.

Notice the wording: "may have a right." Nothing here is automatic. A contribution is something you have to be able to show, and the other partner is free to dispute it.

What kind of evidence tends to matter

Because a claim depends on what you actually put in, records carry a lot of weight. Think about the different ways you may have contributed, and what proves each one.

• Money toward the purchase price, down payment, mortgage, property taxes or insurance, shown by bank statements and e-transfer records.
• Money spent on renovations or repairs, shown by receipts, invoices and card statements.
• Work you did on the property, shown by photos, messages, and the names of anyone who saw it.
• Household arrangements, such as who paid which bills, shown by account histories and texts or emails about money.
• Anything either of you said or wrote about who owned or would own the home.

Not every item on this list will help in every case. The point is to start collecting before documents are lost or accounts are closed.

Agreements can settle this in advance

Two unmarried people who are cohabiting, or who intend to cohabit, may make a cohabitation agreement about their rights and obligations, including property and support. If you already have one, read what it says about the home before you do anything else.

For the agreement 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 the partners exchange financial information before signing.

Even a signed agreement can be challenged. A court may set aside a domestic contract, or a provision in it, if a party failed to disclose significant assets, debts or other liabilities that existed when the contract was made. It may also do so if a party did not understand the nature or consequences of the contract.

If you later marry your partner, a cohabitation agreement is deemed to be a marriage contract.

What to do next

• Find out whose names are on title and on the mortgage. A property records search can confirm this.
• Gather statements, receipts and messages showing what you paid for or did to the home.
• Look for any written agreement between you, even an informal one, and keep the original.
• Do not sign anything your partner or their lawyer sends you until you have had advice.
• Write down a timeline: when you moved in, when you contributed, and when the relationship ended.
• Speak with a lawyer early, since the next steps depend heavily on your evidence.

If your partner is willing to repay your contribution, that can often be settled in writing without going to court. If they are not, a lawyer can explain what a court application would involve.

Frequently asked questions