Does the Separation Date Matter for Common-Law Couples in Ontario?

Many couples decide to split up but keep sharing a home for a while, often because they cannot afford two households or are waiting to sell. Then a question arises: when, legally, did the relationship end?

The separation date can touch support, other claims, pensions and your tax filings. This article explains how the question is approached in Ontario and what to keep in mind while you are still under one roof.

Why the date matters

For support, the Family Law Act widens the meaning of spouse to two unmarried people who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. Whether and when you cohabited is therefore central to whether you can claim or be asked to pay support.

The date can also matter for pensions. Family law pension division under the Pension Benefits Act uses the Family Law Act meaning of spouse, which includes qualifying common-law spouses, and for spouses not covered by FLA Part I the valuation date is the date they separate with no reasonable prospect of resuming cohabitation, while married spouses use the earliest of several events set out in FLA s. 4(1).

How cohabitation and separation are decided

Cohabit means to live together in a conjugal relationship, whether the couple is married or not. The focus is the nature of the relationship, not only the address.

The Court of Appeal for Ontario upheld a finding that partners of almost 14 years who kept separate Toronto homes throughout were spouses for support purposes. In that case the court weighed these factors together:

• Shared shelter
• Sexual and personal behaviour
• Services
• Social activities
• Economic support
• Children
• How society perceived the couple

The same kinds of everyday facts are likely to matter when a couple stays in one home after a split. Whether the relationship was really over is a question of fact, and courts decide it case by case. Separate bedrooms, separate finances and telling others you have split can all be relevant, but no single item decides it.

Support, limitation periods and other claims

Each spouse must support themselves and the other spouse according to need, to the extent they are able, and for support this includes common-law spouses who meet the Family Law Act definition. Support is not automatic, and you must show a basis for it, such as caregiving or career sacrifices, need and ability to pay, or an agreement.

On timing, there is no limitation period for a proceeding to obtain support under the Family Law Act. Other civil claims, such as a property-contribution claim between former partners, generally fall under a basic two-year limitation period that runs from the day the claim was discovered.

Tax and benefit consequences

For federal income tax, a common-law partner is someone who cohabits with you in a conjugal relationship and has done so throughout the 12-month period ending at that time, or who is a parent of your child. Once a couple cohabits, they are deemed to keep cohabiting unless they live separate and apart for at least 90 days because of a breakdown of the relationship.

You must tell the CRA about a change in marital status by the end of the month after the change, and a separation counts once it has lasted more than 90 days because of a breakdown in the relationship. Because couples under one roof may not be living separate and apart in the tax sense, confirm with the CRA or an accountant how your situation should be reported.

What to do next

If you are sharing a home after a split, create a clear record of when and how the relationship ended and how your living arrangements changed.

• Write down the date you both agreed the relationship was over.
• Keep records of separate bedrooms, expense sharing and who pays what.
• Put any interim arrangement, such as rent or bill sharing, in writing and signed by both of you.
• Consider a separation agreement, which separated couples who cohabited may make.
• Speak with a family lawyer about support and property, and an accountant about your tax filings.

If you have reasonable grounds to fear for your own safety or a child's safety, a court may make a restraining order under FLA s. 46 against a person who is or was cohabiting with you for any period of time.

Frequently asked questions