Common-Law Partners and Workplace Pensions in Ontario: What to Know

You may have lived with your partner for years while they built up a pension at work. When the relationship ends, or your partner dies, you want to know whether that pension must be shared with you or paid to you as a spouse.

The answer depends on which law is asking the question. This article explains how Ontario treats common-law partners under several laws and where a pension question fits. It does not set out the detailed Pension Benefits Act rules, so those need to be confirmed for your plan.

Why the word spouse changes from law to law

Under the Family Law Act, the general meaning 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, and that meaning governs property division and the matrimonial home.

Other laws widen the meaning for their own purposes. The table shows a few examples.

A pension statute can have its own definition. Do not assume that meeting one test, such as the tax test, means a plan will treat you as a spouse. Ask the plan administrator for the plan's wording and confirm the position with a lawyer.

No automatic sharing of property on separation

Ontario does not divide property between common-law couples when they separate. Each partner keeps the property they bought, and neither has a right to share the other's increase in property value.

There is an exception. A common-law partner who contributed to property the other owns may have a right to part of it. Unless the owner agrees to pay the contribution back, the partner may have to go to court.

Whether a pension entitlement can be reached through this route, or through some other rule in pension law, depends on the plan and the facts. A lawyer can tell you.

Support is often the stronger route

Every spouse, including a common-law spouse under section 29, must support themselves and the other spouse according to need, to the extent they are able. When the court sets the amount, it considers how long the couple cohabited.

If you qualify, support is based on need and ability to pay rather than on dividing assets. Your partner's pension income may form part of the financial picture, but how it is treated depends on the facts.

If your partner dies

A common-law spouse does not inherit under the Succession Law Reform Act when there is no will. Whether a pension pays a survivor benefit to you depends on the plan and the pension legislation, not on that Act.

You may still have a claim for dependant support. A dependant includes a spouse the deceased was supporting, or was legally obliged to support, immediately before death, and for this purpose spouse includes unmarried partners who meet the three-year or child test.

• The application may not be made more than six months after the grant of letters probate or letters of administration.
• The court may allow a late application, but only for the part of the estate not yet distributed.
• Some assets outside the estate, such as property held in joint tenancy, can be counted as part of the estate for the claim.

What to do next

• Ask the plan administrator for the plan text and for the plan's definition of spouse.
• Check whether the beneficiary or survivor designations on file name you.
• Collect proof of how long you lived together and any contributions you made.
• If you are still together, consider a cohabitation agreement about property and support. It must be in writing, signed and witnessed to be enforceable.
• Speak to a lawyer soon if your partner has died, because dependant support has a deadline.

Ontario's guidance suggests each partner speak to a different lawyer and exchange financial information before signing an agreement.

Frequently asked questions