Are you considered Common Law in Ontario?

Table of Contents

You’re not legally married, but you may be considered to be in a common law relationship!

You are considered common law in Ontario in two situations:

  1. when you are cohabiting with a person who is not your legally married spouse for at least three years; or
  2. you have a child by birth or adoption with a person and you have been cohabiting for at least one year and are in a relationship of some permanence.

Cohabitating means to live with a person in a conjugal relationship. What does that mean? Essentially, a romantic relationship! How do you determine if you’re in one of these relationships:

  • sharing households tasks like cooking, cleaning, and errands;
  • sharing of financial responsibilities;
  • social activities or a mutual friend group;
  • attitude of the couple towards the children, if applicable; and
  • how your friends, family and community view the relationship

The requirement of having an emotional and sexual aspect to the relationship eliminate long-term housemates from being considered common law in Ontario.

“WE WERE ON A BREAK!”

Keep in mind that you can have a voluntary period of separation due to a relationship breakdown as long as that period is for less than 90 days. If your break is less than 90 days than you are still considered to be common law in Ontario.

You are also still considered to be common law in Ontario if you have an involuntary separation, meaning there was no relationship breakdown, but your partner is away for school, work or health reasons, or is incarcerated.

Legal Notice:

If you are in a common-law relationship without a cohabitation agreement. You are passing rights to your assets over to the government. We work with you and your partner in a collaborative, easy approach to our agreements.

hilary angrove ontario prenuptial agreement lawyer

What’s the difference between marriage and common law in Ontario?

The significant differences between marriage and common law in Ontario are your legal rights and responsibilities. If you are common law in Ontario, you do not need to meet the legal requirements of marriage, you and your partner just need to choose to cohabit and establish your conjugal relationship.

Common law in Ontario is legally a de facto relationship, meaning that it must be proved in each individual case based on the facts. Whereas a marriage is legally a de jure relationship, meaning that it has already been established in law. You can easily prove you are married and the day you married with your marriage certificate, but to prove you are in a common law relationship can be more difficult.

How does the Family Law Act in Ontario apply?

The Family Law Act (“FLA“) only applies to couples who satisfy the definition of “spouse”. Under the FLA, “spouse” means either of two persons who:

  1. are married to each other; or
  2. have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”)

This definition of spouse also includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.

The FLA does not provide the same legal rights and protections to common law couples as it does for married couples. Married and common law couples usually have different rights with respect to:

  • assets and debts
  • the cohabiting residence
  • inheritance
  • separation or divorce

However, you can establish or change your rights and responsibilities within your common law relationship through a domestic contract, such as a Cohabitation Agreement. For more information, book a free consultation with Angrove Law.

How does the CRA view Common Law?

The Canadian Revenue Agency (“CRA”) has a slightly lower threshold for tax purposes than common law in Ontario. Under the CRA, you are considered common law when you are cohabiting in a conjugal relationship with a person for at least 12 continuous months. This is the standard definition used across the federal government.

You and your partner cannot be both married and common law in Ontario. It’s one or the other, but not both.

Find out more about your marital status as defined by the Government of Canada here.

Is 6 months considered common law?

No. You must be living in a conjugal relationship for at least three years. If you have a child, you only need to cohabit for one year.

What happens when common law partners split?

Unlike married couples, you do not need a formal divorce to make your separation official. You can settle all your issues that arise without going to court! But it is a good idea to enter into a domestic contract, such as a Cohabitation Agreement or Separation Agreement that sets out your rights.

Do I need a cohabitation agreement if I am common law?

Without a cohabitation agreement, you could lose your fair share of the property acquired during the relationship. It is best to be prepared and establish your rights with a cohabitation agreement.

Transparent, Affordable and Friendly Legal Services In Ontario