Joint Bank Account After Common-Law Separation in Ontario

You and your partner opened a joint account while you lived together, and now the relationship is over. One of you may be tempted to empty it. The other may be locked out or worried the money will vanish. It is hard to know what is fair, and harder to know what the law allows.

This article explains how Ontario treats property for unmarried couples, why a joint account is not always a simple 50/50 pot, and the practical risks of moving money quickly. It is general information. Your own facts matter a great deal, so consider getting legal advice before you withdraw anything large.

Common-law couples do not get an automatic equal split

For married spouses, Ontario has an equal-split rule for property. That rule does not apply to common-law couples. Common-law couples are not legally required to split property acquired while living together, and items belong to the person who bought them.

They also do not have the right to split the increase in value of property brought into the relationship. This is why a joint account can be tricky. Having both names on the account does not, by itself, answer the question of whose money it really is.

Whose money is it really?

How the account worked in practice is a sensible place to start. Who deposited the money? Who paid the bills from it? Was it meant as a shared household fund, or was one person simply giving the other convenient access? The answers can point in different directions for different accounts, even within one relationship.

If one partner put money into something the other partner owns, that partner may have a right to part of it. Unless the other partner agrees to pay them back, they may have to go to court to recover the contribution. Whether this applies to your account depends on the facts, and a lawyer can confirm how it fits your situation.

• Pay cheques or savings that mostly came from one partner
• Money deposited from an inheritance, gift or sale of a home
• Regular transfers used only for shared bills such as rent and groceries
• Who actually used the account day to day, and for what

Should you withdraw money?

Moving a large amount out of a joint account can feel like protecting yourself, but it can backfire. Your partner may see it as taking more than your share, the bank may have its own rules about joint accounts, and the withdrawal can become a point of conflict if the dispute goes to court. Check your account agreement and ask the bank what its process is.

A careful approach is usually better than a rushed one. If you do take money, keep a clear record of how much, when and why, and be prepared to explain it. Taking only what you can show is your own money, or what is needed for urgent bills, is generally easier to defend than emptying the account.

Other things that change when you separate

Separation affects more than the account. For tax purposes, once a couple cohabits in a conjugal relationship they are deemed to keep cohabiting unless they live separate and apart for at least 90 days because of a breakdown of the relationship. CRA says a separation should not be reported until it has lasted at least 90 days, and the effective date is the day you started living apart.

A change in marital status must be reported by the end of the month after the change. Benefits and credits are then recalculated on adjusted family net income, starting the month after the change. If CRA finds an overpayment, it may keep future Canada Child Benefit payments or tax refunds until it is repaid.

Estate planning also matters. A common law spouse does not inherit under Ontario's Succession Law Reform Act if the other partner dies without a will. If you have not updated your will since the relationship ended, this is a good time to do so.

What to do next

• Download statements for the joint account covering as far back as possible
• Note which deposits were yours, which were your partner's, and which came from outside sources
• Read the account agreement and ask the bank about its rules for joint accounts
• Avoid large withdrawals or transfers until you understand your position
• Check whether you and your partner ever signed a cohabitation agreement, which can set out property rights
• Speak to a family lawyer, who can explain whether a negotiated agreement or a court application makes sense. A general application (Form 8) is the form used in Ontario family court for claims other than divorce

If you do reach an agreement, put it in writing. Changes to a cohabitation or marriage contract must be in writing and signed in front of a witness, and each partner should speak to a different lawyer before signing.

Frequently asked questions