Joint Tenants vs Tenants in Common for Common-Law Couples in Ontario

When you and your partner sign the transfer for a home, one choice is easy to overlook: whether you hold title as joint tenants or as tenants in common. The choice affects what happens if one of you dies, and it can shape the conversation if you separate.

This article explains the difference in plain terms, how unequal contributions fit in, and what to think about before closing. It is general information, and a lawyer can confirm how it applies to your property.

The two ways to hold title

Land conveyed to two or more people is considered to be taken as tenants in common and not as joint tenants, unless the document shows otherwise. This applies even if one of them is the spouse of another. If you want joint tenancy, it needs to be stated clearly in the transfer.

Why the death scenario matters for unmarried partners

Ontario law gives no automatic share of an estate to an unmarried partner. A person may dispose of property by will, and an unmarried partner has no intestate share. That is why survivorship can be so significant for common-law couples.

With tenants in common, your share becomes part of your estate, so what your will says becomes crucial. If your partner is not named in the will, they would have to look to other routes, such as a dependant's support claim or, in suitable facts, an equity claim, or a challenge to the will's validity. A dependant's support application generally cannot be made after six months from the grant of probate or letters of administration, with limited court power to extend.

A will is not revoked simply because you start living with someone. It is revoked only by another will, a declaratory writing, or destruction with intent to revoke. Review your will whenever you buy together.

Unequal contributions

Couples often pay different amounts. One partner may provide most of the down payment, while the other pays more of the monthly costs. Holding title as joint tenants does not by itself record those differences.

For unmarried partners, property claims rest on unjust enrichment rather than on the family property rules. The Supreme Court of Canada has said that where there is a joint family venture, the remedy is a proportionate share of the wealth accumulated, linked to contributions. There is no presumption of a joint family venture, and intent and conduct weigh heavily. Ontario's guidance adds that someone who contributed to property their partner owns may have to go to court to recover that contribution.

If you want shares that reflect unequal contributions, a tenants-in-common arrangement combined with a written agreement is one approach to discuss. A cohabitation agreement can cover ownership and division of property, but it is unenforceable unless it is in writing, signed and witnessed. Each partner should use a different lawyer and exchange financial information.

What happens if you separate

Common-law couples are not legally required to split property acquired while living together. So on separation, the answer comes from title, any agreement, and any contribution claim.

• If you cannot agree to sell or buy out, any person interested in land may bring an action or application for partition, and the court may order a sale instead if that is more advantageous to the parties.
• Registering a mortgage by fewer than all joint tenants does not automatically sever the joint tenancy. Severance can occur by the chargee's power of sale or foreclosure.
• A joint borrower on a mortgage becomes equally responsible for repaying the unpaid balance.
• Claims based on unjust enrichment follow the basic two-year limitation period from discovery, with a 15-year ultimate period.

On a buyout, land transfer tax is a point to check. Transfers between spouses or former spouses can be exempt in specific cases, and for this purpose spouse uses the Family Law Act section 29 meaning, which needs three years of cohabitation or a child with a relationship of some permanence. A buyout where one partner pays the other for their interest, beyond assuming the mortgage, does not fit the first exemption category. Taking over the mortgage counts toward the value of consideration. A lawyer or accountant can confirm whether an exemption applies to you.

What to do next

• Talk openly about what you each want to happen if one of you dies and if you separate.
• Choose the form of title deliberately, and make sure the transfer wording matches your choice.
• Write down who contributed what, and consider a cohabitation agreement with separate lawyers.
• Update your will and consider a power of attorney for property.
• Ask about the mortgage: a joint borrower becomes equally responsible for repaying the unpaid balance.
• Get advice before changing title, buying out a partner or registering a new mortgage.

Frequently asked questions