In Ontario, there is no set definition for what it means to be “common law”. Whether you and your significant other are considered to be in a common law relationship depends on the statute at hand. In this article, we will examine the applicable provisions in the Family Law Act and the Succession Law Reform Act. We will also look at how the rights differ between common law and married couples.
2. Family Law Act
According to section 1(1) of the Family Law Act, a spouse is somebody who is married. When a married couple divorces or the spouses separate, the spouse with less assets is entitled to an equalization of net family properties, which is a method of dividing assets between two married individuals. A common law partner, on the other hand, is not entitled to an equalization of net family properties when the relationship ends.
There is also a difference in rights between a married spouse and a common law partner with respect to a matrimonial home. A matrimonial home is defined in section 18(1) of the Act as a property “in which a person has an interest and that is…ordinarily occupied by the person and his or her spouse as their family residence.” Under the Family Law Act, a married spouse cannot sell or mortgage the matrimonial home without their spouse’s consent. Furthermore, both spouses have an equal right to live in the matrimonial home, even if one spouse is not on title to the property. These provisions do not apply to common law relationships.
However, individuals living common law can be entitled to spousal support. The definition of “spouse” under section 29 includes two people who are not married to each other, but who have cohabited continuously for at least three years. The amount of spousal support payable to the common law partner depends on a variety of factors and the court will take into account all the circumstances of the parties when making a determination.
3. Succession Law Reform Act
Section 1(1) of the Succession Law Reform Act states that the definition of “spouse” is the same as that under the Family Law Act. Where a married individual dies without a will (intestate), the intestacy laws allow their spouse to inherit part or all of the deceased’s property. Since these laws do not apply to common law couples, the survivor is not entitled to any part of their partner’s estate upon his or her death.
However, as with the Family Law Act, it is possible for the common law partner to apply to the court for support. Under Part V of the Succession Law Reform Act, a “dependant” includes common law partners, as long as they cohabited continuously with the deceased for at least three years. If the Court finds it appropriate, it can order that payments be made from the deceased’s estate to support the common law partner.
In conclusion, a single legal definition for “common law” does not exist. The requirements that must be met in order to be considered common law will vary from statute to statute. Therefore, if you are in a common law relationship, it is important to be aware that any rights you may have with respect to family and estate matters will based on whether or not you meet the definition of a spouse in the relevant laws.
1. RSO 1990, c F.3 [FLA].
2. RSO 1990, c S.26 [SLRA].
3. FLA, supra note 1, s 1(1).
4. Ibid, s.5.
5. Ibid, s 18(1).
6. Ibid, s 21.
7. Ibid, s 19.
8. Ibid, s 30.
9. Ibid, s 29.
10. Ibid, 33(9).
11. SLRA, supra note 2, s 1(1).
12. Ibid, s 57(1).
13. Ibid, s 58(1).