Who Counts as a Spouse Under Ontario's Family Law Act?

If you live with a partner but never married, you may wonder whether the law treats you as a spouse. The answer depends on which law and which issue you mean. Support, property and divorce each have different rules, and the word spouse does not mean the same thing everywhere.

This article explains the main differences between married and unmarried couples in Ontario, so you know which questions to ask. It does not set out the exact test for who counts as a spouse for support, because that depends on the wording of the statute and on your circumstances.

Different laws, different meanings

Divorce is a federal matter. The Divorce Act applies to married spouses only. If you were never married, you cannot get a divorce, and you do not need one.

Unmarried partners instead rely on Ontario law for issues like support and property. When you read about spouse rights, always check which statute is meant, since a rule for married spouses under the Divorce Act may not apply to you.

Support for an unmarried partner

Whether an unmarried partner can claim spousal support depends on how Ontario law defines a spouse for that purpose and on the facts of your relationship. Do not rely on a rule of thumb you read online. How this applies depends on your situation, so it is worth confirming with a lawyer.

If you are claiming or defending a support claim, the Superior Court of Justice and the Ontario Court of Justice both hear spousal support, and the Ontario Court of Justice also deals with enforcement of support.

Property: where the gap is largest

Property is where married and common-law couples differ most. Married spouses must generally split property acquired during marriage equally when the marriage ends. The family home is shared at full value even if owned before marriage, gifted or inherited, and the court can divide differently only in very special situations.

Common-law couples are not legally required to split property acquired while they lived together. A partner who contributed to property the other owns may have a right to part of it and may need to go to court to recover that contribution.

For married spouses, equalization is the larger net amount minus the smaller, divided by two. To have a court decide an equalization payment, apply within six years from the day of separation or two years from the day the divorce is final, whichever comes first.

Children and where to file

Being unmarried does not stop you from raising parenting questions. The Superior Court of Justice hears parenting time and decision-making, and the Ontario Court of Justice hears parenting as well. The Family Court Branch of the Superior Court is the only court in Ontario that can hear all types of family law cases.

A case usually starts in the municipality where you or your partner lives. For parenting matters it may instead start where the children live. Claims by unmarried partners about trusts or unjust enrichment are heard in the Superior Court.

What to do next

• Write a timeline: when you moved in together, when you separated, and any children.
• Gather proof of who paid for the home, savings and major purchases.
• Note which property is in whose name.
• Do not wait if you may have a property claim; time limits can apply, and a lawyer can confirm them for your case.
• How you count as a spouse for support depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions