Ontario Separation Rules for Married and Common-Law Couples

Many people assume that living together long enough makes you legally the same as a married couple. In Ontario, that is true for some things and not for others, and property is where the gap is widest.

This article compares how married and common-law partners are treated when they separate. It is general information. Your exact status and facts can change the answer, so confirm with a lawyer.

The big picture: where the rules match and differ

Child support and parenting issues involve different rules depending on your situation, and which law applies can differ for married and unmarried parents, so it is worth confirming with a lawyer. For child support, Ontario says the amount is based on the number of children, the payor's province and the payor's annual income.

Property: the sharpest difference

For married spouses, property acquired during the marriage must be split equally when the marriage ends for any reason. In practice this works through an equalization payment: the spouse with the larger share of net family property pays the spouse with the smaller share.

The matrimonial home gets special treatment. Its full value is shared even if one spouse owned it before the marriage or received it as a gift or inheritance.

Common-law couples are not legally required to split property acquired while living together, though they may set property rights in a cohabitation agreement. How this applies to your situation depends on the facts, so it is worth confirming with a lawyer.

Support: who can claim

For Family Law Act support, a spouse includes unmarried persons who cohabited continuously for at least three years, or who are in a relationship of some permanence and are parents of a child. Cohabit means living together in a conjugal relationship, and the Court of Appeal has stressed that the parties must actually live together.

Support is not automatic on separation, so it must be raised. The amount depends on factors like income difference, children, ages and health, and the Spousal Support Advisory Guidelines are only guidelines. For married spouses seeking a divorce, the court considers factors including length of cohabitation, each spouse's functions during cohabitation and any existing support arrangements.

Once support is set, the Family Responsibility Office can enforce it, and enforcement is free for the recipient.

The home, time limits and estates

• Both spouses have an equal right to possession of a matrimonial home, regardless of who owns it, and a court can order exclusive possession, considering factors like the children's interests and any violence. Whether an unmarried partner can rely on these home rules depends on the facts, so ask a lawyer.
• The time limit to go to court over equalization, which applies to married spouses, is six years from separation, or two years from the day the divorce is final, whichever comes first.
• If a married spouse dies, the equalization claim must be filed within six months of death.
• A dependant, including a spouse the deceased was supporting or legally obliged to support, can apply for support from the estate if adequate provision was not made.

Deadlines have exceptions and can be missed easily, so check yours early.

What to do next

Start by establishing your status: were you married, and for how long did you live together? Whether you had children together also matters for support.

• Find your marriage certificate, or note the date you began living together.
• List what each of you owned at the start and what you acquired together.
• Check any cohabitation agreement or marriage contract.
• Note the date you separated and diarize the limitation periods.
• Before you sign a separation agreement, have your own lawyer look it over; Ontario advises that each of you should have your own lawyer.

Frequently asked questions