Living Separate Under One Roof as Common-Law Partners in Ontario

Many exes keep sharing a home after the relationship ends. Rent is high, a lease has months left, or neither person can afford to buy the other out. It can be a sensible choice, but it also raises a hard question: are you still treated as a couple?

The answer depends on the rule being applied and on how you actually live. This article explains how Ontario law looks at shared housing after a breakup, what to watch for with taxes, benefits and tenancies, and how to document your situation. It is general information, not legal advice.

Can you be separated while living together?

Under the Family Law Act, to cohabit means to live together in a conjugal relationship. Both parts matter. The Court of Appeal for Ontario has said cohabitation needs a conjugal relationship and living together, and that lack of a shared residence is not determinative, with the factors considered together.

A court may look at whether the conjugal relationship itself has ended, not just at where each person sleeps. Exactly how that plays out for a couple living in separate rooms depends on the facts, and a lawyer can help you assess it.

Why it matters for taxes and benefits

Under the Income Tax Act, 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 the effective separation date is the day the couple started living apart, and a separation should not be reported until it has lasted at least 90 days.

CRA's marital status guidance centres on being in a conjugal relationship. Whether a couple sharing a home but no longer in a relationship can be treated as separated for tax purposes depends on the facts, so check with a lawyer or accountant before you change your status.

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

A false statement or omission in a return made knowingly or with gross negligence can attract a penalty. Reporting a status you cannot support is a risk in either direction.

Rental housing and who is a tenant

If you rent, the lease matters as much as the relationship. Under the Residential Tenancies Act, an unmarried partner counts as a spouse only if in a conjugal relationship outside marriage and meeting one of: at least one year of cohabitation, parents of a child together, or a cohabitation agreement. A spouse not named on the tenancy agreement may not be a tenant.

If a tenant leaves without notice or an agreement to end the tenancy and the spouse stays in the unit as their principal residence, the spouse becomes a tenant, subject to exceptions. Joint tenants share one tenancy agreement and are each liable for the entire rent, while tenants in common are each responsible only for their own share.

A landlord can end a tenancy only for reasons allowed by the Act, by applying to the LTB. Changing locks on a partner is not a safe way to resolve a shared-home dispute. A tenant locked out without an order can apply to the LTB on Form T2.

Money, property and children while sharing a home

Common law couples are not legally required to split property acquired while living together, and furniture and household items belong to the person who bought them. A partner who contributed to property the other owns may have a right to part of it, and may need to go to court to recover the contribution unless the other agrees to pay them back. Keep track of who pays for what.

If you share the home with children, a written parenting plan helps. Parents can write a parenting plan informally, in a separation agreement, or in a court order, but an informal plan can be difficult to enforce. For the Canada Child Benefit, a child living with you 40% to 60% of the time is treated as shared custody.

How to document your situation and next steps

Because the law looks at how you live, clear records protect both of you. A written agreement is a good start. If you later change a cohabitation or marriage contract, the changes must be made in writing and signed in front of a witness. Each partner should also speak to a different lawyer before signing.

• Write down the date you both agreed the relationship ended.
• Sign a short written agreement on rent, bills, chores and sleeping arrangements.
• Keep separate bedrooms, finances and social lives, and record this.
• Keep proof of who pays which bills and any money one of you contributes to the other's property.
• Note when you update your address, status with CRA and other records.
• Agree in writing on a plan and an end date for the shared arrangement.
• Before signing or changing a cohabitation or marriage contract, each of you should speak to a different lawyer.

Frequently asked questions