Does the Family Law Act Apply to Common-Law Couples in Ontario?

If you lived with a partner without marrying, a breakup raises a hard question: which family law protections do you have? Many people assume that after enough years together the rules are the same as for married couples. In Ontario, they are not.

This article explains the main differences for property and the home, and the other routes that may be open to you. Your answer will turn on your specific facts.

The short answer on property

Equalization is the rule that makes a married spouse with the larger net family property pay half the difference. For common-law couples, the position is different: they are not legally required to split property acquired while living together.

That means who owns an asset, such as a car, savings or a house, often matters a great deal. Whose name is on it can affect the starting point.

Other routes for property claims

Common-law partners may recover contributions to the other's property, sometimes through court. The Superior Court of Justice hears trust and unjust enrichment claims. These claims depend on what each person contributed and what the facts show, so evidence is important.

• Records of payments toward a home, renovations or mortgage
• Proof of money or work put into the other partner's business or property
• Messages or documents showing what you both understood

Many people try to settle before going to court. Ontario says mediation can be used before, during or instead of a court case and can be faster, cheaper and more private than court. Family mediation in Ontario is voluntary, and the mediator is a neutral third party who does not take sides, make decisions or give legal advice. At intake, mediators screen each person separately to confirm an equal negotiating position.

The shared home

A married spouse can ask a court for exclusive possession of the family home even if it is in the other spouse's name. Ontario's guidance does not give unmarried partners the same right, and it tells them to see a lawyer about their rights to the shared home.

If you fear for your safety, you can seek help right away. The Victim Support Line is 1-888-579-2888. Family Law Information Centres at family courts also give information on separation and court processes.

Support, taxes and other points

Support between unmarried partners, and what happens if a partner dies, depend on the facts and the particular statute involved. Those questions are worth confirming with a lawyer rather than assuming the married-couple rules apply.

Tax is one area where common-law partners are included. Capital property transferred to a spouse or common-law partner, or to a former spouse or partner in settlement of rights arising from the relationship, rolls over at adjusted cost base if both are resident in Canada. The transferor may elect out in their return. On a breakup, RRSP property can be transferred tax-free to the other person's RRSP or RRIF if they are living separate and apart and the transfer is made under a court order, judgment or written separation agreement.

Where a claim would be heard

Where you start depends on where you live and what you are claiming. The Family Court Branch of the Superior Court of Justice sits in 25 locations, including Barrie, Lindsay and Peterborough, and all family law issues can be heard there. Outside those locations, you start in either the Superior Court of Justice or the Ontario Court of Justice, depending on the claims.

The choice matters for property. The Ontario Court of Justice hears parenting, child and spousal support, support enforcement, adoption and child protection, but not divorce or property. Generally, you start in the municipality where you or your spouse lives, though if parenting time or decision-making responsibility is involved, the municipality where the children live may apply instead.

• A family case starts with an application (Form 8, 8A or a joint application).
• Parties must attend a Mandatory Information Program session before their first appearance or case conference, and no later than 45 days after the case starts.
• That session is not required in some situations, such as when you agree on all matters or already attended one, and a judge can excuse it if your circumstances are urgent or attending would cause you hardship.
• Financial statements are Form 13 for support claims or Form 13.1 for property or debt claims.

What to do next

• Gather proof of who paid for what, and when
• Note the date you began and stopped living together
• Do not sell, move or mortgage shared property in a rush
• Speak with a lawyer about the home, any claims and any agreement
• Ask an accountant about tax on any transfers

Because the protections for unmarried partners work differently, getting advice early can help you understand what you can claim and what proof you will need.

Frequently asked questions