Does Moving In Together Make You Common Law in Ontario?

You have been staying over more and more, or one of you has given up a lease. Perhaps you each keep your own address but spend most nights together. At some point you may wonder whether the law now treats you as a couple.

The honest answer is that it depends on why the question is being asked. Ontario and federal laws use different tests and different time periods, and none of them turns on a single move-in date. This article sets out the main ones so you can see where you may stand.

There is no automatic date

Moving in together does not by itself create a legal status. The Family Law Act defines cohabit as living together in a conjugal relationship. That has two parts: you live together, and the relationship is a couple relationship rather than, say, roommates.

Ontario's guidance says 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. Other laws use shorter periods.

The main tests side by side

Ontario Works has its own test for deciding whether people who share a home are spouses. The details of that test can change, so it is worth confirming the current rules with the program or a lawyer before you rely on them.

Separate addresses, overnight stays and breaks

Staying over often is not the same as living together. Because the tests ask whether you cohabit, the facts of your daily life matter: where you live, how you share expenses and how you present yourselves. IRCC, for example, looks for proof that a couple shares the same home, supports each other financially and emotionally, has children together if applicable, and presents themselves in public as a couple.

Breaks in living together are treated carefully for tax. Once partners cohabit, they are deemed to keep cohabiting unless they have lived separate and apart for at least 90 days because the relationship broke down. CRA says the 12 continuous months include any separation of less than 90 days.

Where you keep separate homes for work or family reasons, the answer is fact-specific. A lawyer can look at your situation before you rely on any of these tests.

What being common law can mean in practice

• Support: every spouse, including a common-law spouse under s. 29, must support themselves and the other spouse according to need, to the extent they are able.
• Length of time together is one factor a court considers when setting support.
• Property: you do not gain a right to split property or its increase in value just by living together.
• Benefits: ODSP uses the couple's combined income, assets and expenses to decide eligibility and amount.

Immigration has its own exceptions. A couple who cannot live together because of persecution or penal control may still be considered common-law partners if they have been in a conjugal relationship for at least one year. A relationship entered into mainly to gain status, or that is not genuine, is not recognized.

What to do next

• Note the date you began living together as a couple and any periods apart.
• Keep proof of a shared home: a joint lease, shared utility bills, or documents for both of you showing the same address.
• Talk openly about money and property before one of you moves into the other's home.
• Consider a written cohabitation agreement, which must be signed and witnessed to be enforceable.
• Ask a lawyer or accountant which test applies to your question, whether it is support, tax, immigration or a benefit.

Frequently asked questions