Some of the most common questions I get asked when people find out I am a family lawyer are: “What am I getting into by moving in with my girlfriend/boyfriend?” and “When/how do we become common-law?”. They’re pretty important questions.
I think one of the reasons why there is so much confusion is because this issue is legislated by the provinces, so it depends on where you live. That means my answer to these questions only applies to Ontario.
In Ontario, spousal support (or what they call alimony in the U.S.) and the division of property upon separation is governed by the Family Law Act.
For the purposes of support, non-married couples become “spouses” or “common-law partners” if they:
a. Have lived together continuously for at least three years; or
b. Have a child together and are in a relationship of some permanence.
That means, if you do not have children together (biological or adoptive), you only start risking/being entitled to spousal support after living together for three years.
If you have a child together, and are in a relationship (more than a one-night stand, but how much more is pretty unclear), you may have to pay, or you may be entitled to claim, spousal support. As a side note, once you have a child together, child support becomes an issue no matter the length of the relationship (or lack thereof).
Canada Revenue Agency currently treats an individual’s partner as a common-law spouse for tax purposes after a couple has lived together for one year or they have a child together. This does not impact your family law rights or obligations.
According to the Family Law Act, non-married couples are not entitled to the property division regime known as the equalization payment. The equalization payment is intended to ensure that married spouses share equally the wealth they accumulate during the marriage.
That means that no matter how long you live with your partner, you will not be entitled to divide property. That is, unless you get married or you sign a domestic contract or cohabitation agreement opting into a property sharing regime.
However, common-law couples can gain an interest in their partner’s property through equitable remedies. The most common equitable claim is unjust enrichment. Generally, this requires the person claiming an interest in their partner’s property to prove that they have taken actions, to their detriment, that have benefitted the financial situation of the other spouse, and there was no juristic reason for this benefit. An example of a juristic reason could be an agreement to cut the grass once a week instead of paying rent; in that case, a claim for unjust enrichment for cutting the grass would be unsuccessful. An actual example of unjust enrichment would be where one spouse spends a significant amount of time and money making improvements to the other spouses’ solely owned home, disproportionate to any benefit they may have received from just being able to live in the house. This area of law is very discretionary and based on the facts in each scenario. Long story short – do not contribute to another person’s assets without a cohabitation agreement confirming your expectations of reimbursement. Otherwise you may end up in a sticky legal situation. These legal battles sometimes cost more than the assets in question.
One final property issue to look out for: joint assets and debts. If you put money into a joint account or asset, the other joint owner is entitled to half, no matter who contributes and how much. Note that there may be equitable remedies such as the presumption of resulting trust, but all the warnings about unjust enrichment apply here as well. Similarly, joint debts are shared equally no matter who incurred the debt – so make sure your partner isn’t incurring debt in your joint name that you aren’t willing to pay half of.
The take-away message is this: if you move in with your partner and do not have children, you could be liable/entitled to support after three years, but you are never automatically entitled to property sharing, although in certain circumstances you may be able to claim unjust enrichment or other equitable remedies. The default position created by the Family Law Act can be altered by contract. That means you can opt in to property sharing, or opt out of spousal support, or clarify/waive each other’s rights to unjust enrichment by signing a cohabitation agreement.
It never hurts to contact a lawyer to do a checkup and see if your current rights are aligned with your expectations, especially if you have been in a lengthy common-law relationship.
Contact Family lawyer Alice Weatherston by email at firstname.lastname@example.org or by phone at 613-683-8113. Interested in reading more? Check out our other articles related to common-law spouses and Family Law, by clicking here.