Moving In Together in Ontario: When Do Common-Law Rights Start?

You have just moved in together, or you are thinking about it, and you want to know when you become common-law partners. People often hear a magic number, such as one year or three years, and assume it applies everywhere.

It does not. Different laws ask different questions, so you can be treated as a couple for one purpose and not another. Here is how the main triggers work.

Why there is no single date

Under the Family Law Act, to cohabit means to live together in a conjugal relationship, whether within or outside marriage. Each statute then adds its own conditions. The table shows the main ones.

Support and property: the big family law differences

A spousal support claim can arise after three years of cohabitation or sooner if you have a child together and the relationship has some permanence. You must also show a need, such as that relationship responsibilities prevented you from building a career, that separation left you in need and your spouse can pay, or that an agreement provides for support. There is no limitation period for a support claim under the Family Law Act.

Cohabitation does not have to mean one shared address every day. In one Court of Appeal decision, Climans v. Latner, 2020 ONCA 554, the parties were spouses even though they kept separate homes, but the court said there needs to be some element of living together under the same roof. The start date also matters for how long support lasts, and in that case a wrongly early start date led to indefinite support being reduced to ten years.

Property works differently. For equalization, a spouse means people who are married to each other, so unmarried partners are not spouses. Common-law couples are not legally required to split property acquired while living together, and household items belong to whoever bought them. If you contributed to property your partner owns, you may have a right to part of it, but you may have to go to court to recover your contribution. Unmarried partners can claim unjust enrichment, and there is no presumption of a joint family venture.

Tax, benefits and health decisions

For tax, CRA says a person is your common-law partner if you live together in a conjugal relationship and they have lived with you for 12 continuous months, are the parent of your child, or have custody and control of your child who depends on them for support. Once you are treated as cohabiting, you are treated as still cohabiting unless you are separate and apart for at least 90 days because of relationship breakdown.

For consent to treatment, a spouse or partner ranks in the list of people who can decide for an incapable person. A partner is one of two people who have lived together for at least one year and have a close personal relationship of primary importance in both their lives.

Because the tests differ, check the specific benefit or form you are dealing with. Reporting rules for a change in status can also differ between CRA pages, so confirm the current rule before you file.

If one of you dies

An unmarried partner has no intestate share and is not an automatic beneficiary. A will is revoked only by another will, a declaratory writing, or destruction with intent to revoke; living together does not change it.

A partner who meets the support test can claim as a dependant if the deceased did not make adequate provision for their proper support. That application generally cannot be made after six months from the grant of probate or letters of administration.

First steps to protect yourselves

• Write down your move-in date and keep proof, such as a lease, utility bills and mail.
• Consider a cohabitation agreement; it must be signed in front of a witness, and each partner should use a different lawyer and exchange financial information.
• Remember that an agreement cannot decide parenting time or decision-making for children.
• If you buy a home together, check how title is held: land conveyed to two or more people is taken as tenants in common unless the document says otherwise, even between spouses.
• Understand that with joint tenancy the survivor inherits the share, while a tenant-in-common's share goes into their estate.
• Know that a co-signer on a mortgage or loan becomes equally responsible for the unpaid balance.
• Make powers of attorney and wills; without an attorney for property, family including a spouse cannot automatically make financial decisions.

A lawyer can look at your timeline and tell you which rules are likely to apply to you.

Frequently asked questions