Does Common-Law Status Start After One Year Together in Ontario?

Many people have heard that you become common-law after a year of living together. That is true for some purposes and not true for others. If you are trying to pin down the exact date your relationship became common-law, the honest answer is that it depends on why you are asking.

This article walks through how the start date is treated for support, property, taxes and benefits, and health decisions. It also covers what kind of evidence helps if you and your partner later disagree about when you started living together.

There is no single common-law date in Ontario

Each law that uses the idea of a common-law partner sets its own definition. The Family Law Act, the income tax rules, the Canada Pension Plan and the health care and substitute decision laws all use different tests. A couple can meet one test and not yet meet another.

What counts as living together

Under the Family Law Act, to cohabit means to live together in a conjugal relationship, whether within or outside marriage. A conjugal relationship is about more than sharing an address. It is about the nature of the relationship.

The Court of Appeal for Ontario has said that lack of a shared residence is not determinative, but there needs to be some element of living together under the same roof. In that case the parties were found to be spouses even though they kept separate homes. Courts weigh several factors together, including shelter, sexual and personal behaviour, services, social activities, economic support, children and how others saw the couple.

This means the date is rarely a single moment such as the day a lease was signed. It is often a pattern that built up over time, and the pattern is what gets examined if there is a dispute.

Why the start date matters

For spousal support, the three-year test is counted by cohabitation, so a few months can decide whether someone qualifies at all. The date also affects how long support may last. The Spousal Support Advisory Guidelines measure the length of a relationship from the start of cohabitation to the date of separation, and if a couple separated and reconciled, the cumulative total of the periods of cohabitation is usually used.

Support can be indefinite for relationships of 20 years or longer, or where the Rule of 65 applies, meaning years together plus the recipient's age at separation add up to 65 or more. The Rule of 65 does not apply to relationships under five years. The guidelines are advisory only, but they are often used by lawyers and judges.

In one Court of Appeal decision, the start date of cohabitation had been fixed too early. Correcting it meant the Rule of 65 did not apply, and indefinite support was reduced to ten years. That shows how much a start date can change the outcome.

Taxes, benefits and separation

For federal tax purposes, a common-law partner is someone you live with in a conjugal relationship who has lived with you throughout the 12-month period ending at that time, or who is the parent of your child. The CRA describes the same idea, including 12 continuous months, and says a separation of under 90 days because of relationship breakdown does not break that period.

Once you are treated as cohabiting, you continue to be treated that way unless you are separate and apart for at least 90 days because of the breakdown. Separated status takes effect on the day you began living apart once the 90 days have passed. Pages on when to report a change in status have differed, so check the current CRA guidance before you file or change benefit information.

For property, the picture is different. Common-law couples are not legally required to split property acquired while living together, and they have no right to split the increase in value of property one partner brought into the relationship. Property claims between former partners generally rest on unjust enrichment, which has a two-year basic limitation period running from when the claim was discovered, and a 15-year ultimate period.

Evidence that helps show your start date

If you and your partner remember the date differently, or if a government office or court asks, documents created at the time are more useful than memories. Consider gathering:

• Leases, mortgage documents or property records showing when you moved in together
• Utility bills, internet accounts and insurance policies listing both names
• Address records such as driver's licence, health card, bank statements and tax filings
• Joint accounts, shared credit cards and records of who paid household costs
• Messages, photos, travel records and invitations showing you were treated as a couple
• Letters from employers, landlords or benefits offices listing a partner at your address
• Records showing any periods of separation and when you resumed living together

If the dates in different records do not match, that is worth noticing early rather than later, because it can affect how a start date is argued.

What to do next

• Write down a timeline: when you started dating, when you began staying over, when you moved in, and any separations or reconciliations.
• Work out which question you are really asking, such as support, property, taxes, benefits or a medical decision, because each uses a different test.
• Check your tax and benefit information against the current CRA and Service Canada guidance so your status is reported consistently.
• If a cohabitation agreement makes sense for you, remember it must be in writing, signed and witnessed to be enforceable. Each partner should use a different lawyer and exchange financial information.
• If you are separating or a dispute has started, speak to a family lawyer about which test applies to your situation, since the facts of your relationship decide the answer.

Frequently asked questions