Does a Cohabiting Partner Have Ownership Rights in a Home in Ontario?

You have lived with your partner for years, you helped pay for the house or improved it, and your name is not on title. Now the relationship is ending, or you are worried about what happens if your partner dies or sells. You want to know whether you own any part of the home.

In Ontario, being on title and having a claim are not always the same thing. This article explains how the law treats married and unmarried partners differently, what kind of claim an unmarried partner may be able to bring, and the steps worth taking early. It is general information, not advice on your situation.

Why title matters, and why it is not the whole story

Title is the official record of who owns a property. Anyone can search and download current and historical property records, such as a parcel register, through OnLand for a fee. If your name is not on the parcel register, you are not a registered owner.

That does not automatically end the discussion. A person who is not on title may still argue that they have an interest in the home because of what they contributed. Whether that argument succeeds depends on the facts, and it is usually decided by a court if the parties cannot agree.

The matrimonial home rules do not cover unmarried partners

For married spouses, the Family Law Act gives both spouses an equal right to possession of a matrimonial home, whoever is on title. A spouse also cannot sell or mortgage an interest in the matrimonial home unless the other spouse joins in or consents, has released their rights in a separation agreement, or a court order authorizes it.

Those matrimonial home rules in Part II apply to spouses as defined in section 1(1), which means married couples. If you are unmarried, you generally cannot rely on them to stop a sale or to stay in the home.

• Married spouses: equal right to possession of the matrimonial home, and consent needed to sell or mortgage it, with exceptions such as a registered joint designation of another property.
• Unmarried partners: the Part II matrimonial home rules do not apply.
• A married spouse who is not on title has a possession right that is personal and generally ends when they stop being spouses, unless an agreement or order says otherwise.

What an unmarried partner may be able to claim

Ontario guidance says common-law couples are not legally required to split property acquired while living together. It adds that a partner who contributed may have a claim and may need to go to court.

Lawyers often describe these claims using terms such as resulting trust or constructive trust. In plain words, the argument is that your money, work or other contributions mean it would be unfair for the other person to keep the whole home. Whether such a claim fits your situation, and how it would be proved, depends on the facts. A lawyer can assess that with you.

Death raises a separate issue. If someone dies without a will, a common-law spouse does not inherit under the Succession Law Reform Act. If you are not on title and your partner has no will, you could be left with a claim to make rather than an automatic right.

Tax points to know before changing title

Some couples try to fix the problem by adding the partner to title. Doing so can have tax effects. Land transfer tax is calculated on the value of the consideration, and the Act has no general exemption for gifts of land, though no tax is payable if no consideration of any kind passes. If a mortgage is assumed on a gifted property, tax is payable on the amount owing at registration.

For income tax, a person who gifts property, or transfers it to a non-arm's-length person for less than fair market value, is deemed to have received fair market value as proceeds, which can trigger a capital gain. Capital property transferred to a spouse or common-law partner, where both are resident in Canada, is generally deemed transferred at cost, so no gain arises immediately, although the transferor can elect out on their return. If a home was your principal residence, you report the sale and designate the property on Schedule 3 to claim the principal residence exemption.

What to do next

• Search the parcel register to confirm who is on title.
• Gather records of what you contributed, such as payments, renovation costs, and bank statements.
• Keep any written agreement between you and your partner, including a cohabitation agreement.
• Do not sign anything about the home, or move out, without first getting legal advice.
• Speak with a lawyer about whether a claim is realistic and about tax advice before any transfer.

Acting early matters, because evidence is easier to gather while the relationship is recent and records are available. A lawyer can also tell you whether any time limits apply to your situation.

Frequently asked questions