What Does Common-Law Mean in Ontario? A Plain-Language Definition

If you are searching for what common-law means, you probably want a short answer first. In everyday language, it describes a couple who live together as partners without being legally married. The details, and the rights that come with it, are more mixed than many people expect.

This article gives a plain definition, explains who qualifies, and lays out what common-law status does and does not change in Ontario.

A short definition

Under the Family Law Act, to cohabit means to live together in a conjugal relationship, whether within or outside marriage. How this applies to your own relationship depends on the facts, so it is worth confirming with a lawyer.

Courts look at both elements: the conjugal relationship and the living together. Some element of living together under the same roof is needed, though a lack of a shared residence is not determinative and the factors are considered together.

Who qualifies

You are treated as common-law when you meet the test in the particular law that applies. Those tests differ.

Because of these differences, you can meet one definition and not another. For example, a couple who have lived together for 12 months may meet the tax test, while the Family Law Act support test refers to three years of continuous cohabitation.

What common-law status can give you

• Spousal support: a common-law partner may be entitled to it, but it is not automatic. The claimant must show things like a relationship responsibility that kept them from building their own career, or a financial need the other spouse can meet.
• Child support and parenting: these are covered by provincial law for unmarried couples who separate, and they apply whether or not the parents were married.
• Tax and benefit treatment: CRA treats common-law partners as a couple when its test is met, which affects how benefits and credits are calculated.
• Tenancy rights: a spouse who stays in a rental unit as their principal residence after the tenant leaves without notice may become a tenant, subject to exceptions.

What common-law status does not change

Property is the biggest surprise. Common law couples are not legally required to split property acquired while living together, and belongings generally belong to the person who bought them. They do not have the right to split the increase in value of property brought into the relationship, because the equal-split rule for married spouses does not apply.

A partner who contributed to property the other owns may have a right to part of it. Unless the other partner agrees to pay them back, they may have to go to court.

Common-law partners also cannot divorce. Only legally married couples can divorce, and the federal Divorce Act covers only married couples. Finally, a common law spouse does not inherit under Ontario's Succession Law Reform Act if the other partner dies without a will.

What to do next

If you want clarity about your rights, think about which area matters most and take a few practical steps.

• Decide whether your concern is support, property, children, taxes, housing or an estate.
• Collect basic records: move-in dates, leases, receipts for major purchases and proof of who paid for what.
• Consider a cohabitation agreement, a domestic contract setting out property rights; it cannot decide decision-making responsibility or parenting time for children.
• Think about a will, since a common law spouse does not inherit on an intestacy.
• If a relationship is ending, ask a family lawyer about a general application (Form 8) for claims other than divorce, such as parenting, child support or dividing property.

Frequently asked questions