What Counts as Common Law in Ontario? Legal Definition Explained

Many people say they are "common law" without knowing what that means legally. You may have lived with a partner for years, or you may have just moved in, and you want to know whether the law treats you as a couple.

The honest answer is that it depends on why you are asking. Ontario and federal laws each use their own definition. This article walks through the main ones so you can see where your situation might fit.

Why there is no single answer

"Common law" is an everyday phrase, not one legal status. Each statute or program sets its own test for when two unmarried people are treated like spouses. Some look at how long you have lived together. Others look at whether you have a child, or at how tied together your finances and daily lives are.

Underneath most of these tests is the idea of cohabiting. The Family Law Act defines "cohabit" as living together in a conjugal relationship, whether or not the couple is married. A conjugal relationship is a marriage-like relationship, which usually involves more than sharing a home.

Family law: support versus property

Under the Family Law Act, the general definition of "spouse" covers people who are married to each other, or who entered a marriage that is voidable or void. It does not include unmarried partners.

For spousal support only, the Act widens the definition to include two unmarried people who have cohabited continuously for not less than three years. There is also an exception for parents: unmarried partners count as spouses for support however long they lived together if they cohabited in a relationship of some permanence and are the parents of a child as set out in section 4 of the Children's Law Reform Act. Ontario's own guidance describes the same pattern.

Property is different. Ontario does not divide property between common-law couples when they separate, and each partner keeps what they bought. The exception is a partner who contributed to property the other owns, who may have a right to part of it.

Tax, immigration and benefits

Other laws set shorter or different tests. This table shows the main ones named in Ontario and federal sources.

The consequences vary too. Under ODSP, a spouse is part of the benefit unit, and the couple's combined income, assets and expenses are used to decide eligibility and the amount of income support. For Ontario Works, financial, social and familial interdependence must all be present for co-residents to be found spouses.

Where your situation might land

The same couple can be common law for one purpose and not for another. For example, partners who have lived together for 12 months may meet the tax test without yet meeting the three-year support test, unless they also have a child together.

• Moved in six months ago with no children: probably not common law for support or tax yet, but other programs may look at the facts differently.
• Together for more than three years: likely within the support definition.
• Parents of a child, living together in a relationship of some permanence: may qualify for support at any length of time.
• Living together mainly to share rent, with separate lives: financial ties alone do not make you spouses for Ontario Works.

These are general illustrations. Outcomes depend on the facts, and the rules for immigration sponsorship in particular have their own proof requirements.

What to do next

Start by working out which question you are really asking: support, property, taxes, a benefit or an immigration application. Then look at the test for that one.

• Write down the date you started living together and any times you lived apart.
• Note whether you have a child together.
• Gather documents showing a shared address, such as leases, bills or insurance.
• Check what each benefit or tax form says about your status before you sign it.
• Speak with a lawyer if you are separating, sponsoring a partner or unsure how your status affects your rights.

Frequently asked questions