What is Common Law Marriage?
Understanding Common Law Marriage in Ontario
Definition:
Common law marriage, also called marriage by cohabitation or common law union, is a term that describes a non-legal relationship. Co-habiting individuals are said to be "common law" to each other provided that they reside with their partner in a manner de facto similar to that of a lawfully-married couple for the purposes of determining spousal value in a separation and divorce.
Common law marriage must be differentiated from a legal marriage. A common law marriage does not have the authorization or participation of any legal authority. It is not officiated by a priest or other religious leader, nor does it require any kind of public ceremony. Once a common law marriage has ended, separating parties are required to start a legal proceeding in order to end the relationship in a court of law and divide assets fairly under the law.
Common law marriages are not recognized in all jurisdictions and their terms and recognition may vary. For example, while some provinces do recognize common law marriages, others do not . In Ontario, couples who fall below the recognized period of cohabitation are considered legally single.
Who Chooses Common Law:
Common law marriage is usually an elective relationship, and remains popular because it allows couples to live a lifestyle separate from organized religion or government oversight. Many individuals simply sign a rental agreement or mortgage document and co-habit as any legal couple would.
Sometimes, individuals in common law marriages come from a background where intimate relationships are disallowed or frowned upon. Childless couples, siblings, and even strangers may also seek to co-habit in a common law marriage to share living expenses, decrease stress, or improve other personal situations to which outsiders may not need to contribute.
Who qualifies as a common law couple in Ontario:
In Ontario, you must have been living together as a continuous couple for three years in order to qualify as a common law couple. If the couple has a child together, the cohabitation period is reduced to only one year.
Legal Standing of Common Law Marriage in Ontario
Common law relationships in Ontario do not carry with them the same protections as a marriage. However, they are recognized by law. In Ontario, we have a common law equivalent to British Columbia’s "common law spouse" status i.e. "spouse". Ontario legislation, the Family Law Act, RSO 1990, c. F.3, defines "spouse" as someone who is either married to someone or who has been living in a conjugal relationship with that person for a minimum of three (3) years or has been living with the other person in a conjugal relationship for the past year and is the parent of a child. As can be seen from the definition above, the courts are required to apply a three (3) year rule to determine the existence of a common law relationship and the essential ‘fact’ is cohabitation i.e. sharing either a permanent or semi-permanent residence.
The legislation does not specifically require joint bank accounts, joint tax returns, a common family name, joint utility bills, or sharing of chores/household responsibilities. The legislation also does not require any sort of public acknowledgement or celebration of a relationship. This has led to concern that there is more a "cut and paste" mentality to the definition rather than its actual application. Indeed, the courts have taken a far less rigid approach in applying these factors in their case law. There appears to be no hard and fast rule. There are cases that have found that two people sharing a room, together with their respective children, have met the test of cohabitation.
Many people believe that palimony will automatically be applicable to them if their relationship ends. Palimony effectively allows a common law spouse to ask for provision similar to that which is available to spouses under the Divorce Act. There is actually no provision for expressing a claim for palimony in Ontario, though there may be in other provinces. There is a misconception that the three (3) year rule applies to get palimony. There actually is no such thing. One only has to refer to the definition of "spouse" above to understand this point. While the three (3) year rule applies to defining the existence of a common law relationship, it does not apply to whether or not parties should be paid under the law. In fact, the courts are often referred to an Ontario Court of Appeal case where it is observed: "In short, we reject the notion that either the duration of a marriage or the duration of a common law marriage is necessarily a relevant factor in determining the quantum of support…."
It is important to note, though, that the provision regarding common law partners under the Family Law Act does not provide greater provisions or rights than a married couple. Rights such as the right to inherit are not available. Also, there is a difference between property and support.
In addition to the above, a number of special rules apply to the rights of common law couples. For example, former spouses may apply for spousal support and/or property division under the Divorce Act, RSC 1970, c. D-8 if they married within their common law relationship and have not yet remarried. A property claim can be made under the Ontario Family Law Act, RSO 1990, c. F.3. A claim of unjust enrichment and constructive trust may also be available and a claim of constructive trust under the Land Titles Act may also be available.
Requirements of Being a Common Law Couple in Ontario
In order to be considered a common law couple under Ontario family law, cohabitants must have lived together in a conjugal relationship for a period of three years or more (the latter period can be reduced if the parties have a child together).
A review of Ontario case law interpreting the terms "cohabit" and "conjugal" has identified the following factors for determining whether a couple is common law:
Although no specific requirements have been set out by the Ontario legislation for proving the above criteria, evidence of each must be reviewed in an application for spousal support or property division purposes.
In considering spousal support entitlement and the length of cohabitation, courts will often consider the following: The key issue of cohabitation is the interdependence of the parties financially. For example, in Van Dam v. Jones 2018 ONSC 3410, the court found that the two year cohabitation requirement was not met in a relationship where the parties both owned a car, the car insurance policy was put in the husband’s name and the wife did not contribute to the cost of the car insurance premium, both parties were gainfully employed, the wife paid half the rent for the apartment they lived in, the wife’s contribution to the grocery budget was less than half and the parties paid their own personal bills.
The court found the parties’ correspondence to each other evidencing love and affection, commitment, shared goals and a mutual intention to build a life together as husband and wife persuasive in considering the required conjugal factors.
The most common issues that arise in the context of common law couples relate to designation of benefit from pensions, spousal support entitlement and the payment of household expenses while the relationship of the parties was ongoing.
When living together in a conjugal relationship, an unregistered common law spouse is not entitled to pension benefits accrued during the course of the relationship as successor and will not receive inheritance on the death of a common law spouse unless the deceased spouse made a clear alternative will.
Common Law Partner Rights and Obligations in Ontario
Although a common law spouse can inherit when someone passes away intestate (without a will), the rules are not the same for married spouses. While a legally married spouse has the right to 50% of the assets of a spouse upon death and may be granted spousal support, this is not the case for common law spouses. In fact, common law spouses do not have any rights upon the death of their spouse. They do not share property or the assets that their spouse has amassed unless that property or asset is specifically mentioned in a will. Inheritance laws for a common law couple are dependent on the laws of the province in which they reside. In Ontario, each spouse could leave their assets to whomever he or she wanted, including friends or even a charity. If a common law spouse believes they have been unfairly left out of a will, that spouse can contest the will in court.
The division of assets also varies for common law spouses. There is no equalization payment like there is for married spouses. Instead, assets go to the spouse whose name they were purchased under. If the property was bought jointly both partners have rights to it. If it was gifted to one spouse, the other spouse has no rights to it. The rights of a common law spouse end when the couple separates. Unlike married spouses, who are both required to support one another after separating, common law partners are not required to continue to provide support. However, a judge may grant spousal support to one partner when ordering support payments for children. Child support payments are decided based on a formula established by the federal government.
Dissolution of Common Law Relationships
Until Ontario law recognizes common law relationships as equivalent to marriage, contracts, separation negotiations, and litigation remain the only way to end a common law relationship. Property disputes between common law spouses may be resolved through negotiation, mediation or litigation in court. If negotiation fails, an application may be brought by one party to address property division. Situations where property was co-owned or owned separately may be more complicated in terms of determining who receives what assets. Ontario law has developed a presumption that each individual contributed equally to the acquisition of property while the parties were living together. This means that each spouse has a legal claim against the other for an equal share of property held in joint name, and potentially against the other spouse for half the value of that property held in a single name . For example, Matt and Mary are common law spouses who have been together for about 3 years. They live together in a house that they bought jointly, and have no children. They also have some investments that were bought jointly, and individual investments made apart from each other. In the event of the breakdown of the relationship, Matt has an equal claim against Mary to half the value of the house, and half the value of the investments. If he can show that Mary used any of her own investment funds to contribute to the downpayment on the house, then he also has a claim to that contribution on her part (but likely will end up with an equalization to zero so he’ll have no ability to get that money back). As with married couples, child care and division of debts will arise when common law spouses separate. Child support will be dealt with in the same way as paying parents who are not married, and Debt issues will be dealt with in the same manner.
Common Law Couples in Other Provinces of Canada
In British Columbia, common law couples are recognized under the Family Law Act. S. 1 of the Family Law Act states that a common law couple is when two people flint for a continuous period of at least two years. Like Ontario, the Act provides that spouses have the same responsibilities and entitlements as a married couple (such as spousal support, entitlement to property in the event of relationship breakdown, etc.). The stipulation that two parties must have lived together for at least two years in order to be considered common law is quite different from what is required in other provinces.
In Quebec, a common law couple does not gain any legal rights as a result of their status as a couple. However, Quebec is different than Ontario and B.C. because being in a common law relationship does not confer support obligations on the couple. That is, if the relationship were to breakdown the spouses will not be considered spouses for the purposes of spousal support (unlike in Ontario and B.C.). Further, Quebec common law couples do not acquire rights in the estate of the other spouse and can only make a claim against the estate of their deceased spouse as a dependent.
In Newfoundland and Labrador, a common law couple has the right to apply to the court to order a division of the family property if there is a separation and a child of the relationship. If there is not a child of the relationship the couple does not have the same rights that they would otherwise have if they were married.
Recent Development in Court Cases
Court cases regarding Common Law relationships are on the rise. With the number of common law relationships increasing, we expect the courts will become more liberal in carving out rights for common law couples.
The biggest change occurred in 2005, when the Spousal Support Advisory Guidelines were revised to recognize the effect of the cohabitation of married spouses on the entitlement of a common law spouse to spousal support.
In January 2013, the Ontario Court of Appeal released Joseph v. Beaumont, a decision which extends a lifetime spousal support obligation to qualifying common law partners. The case involved a couple who began living together in 1970. Both were in their early twenties at the time and both were going through separate divorces. They married 39 years later in 2009. By this time both of them were in their 70’s and 80’s. Over the course of their lives together, Mrs. Beaumont stayed home to take care of the couple’s children . Mr. Beaumont left all financial affairs to Mrs. Beaumont and has little money of his own. Shortly after their marriage, Mrs. Beaumont began an action for divorce and corollary relief. The trial court held that since Mr. Beaumont was not the breadwinner he was not responsible for Mrs. Beaumont’s support. The Court of Appeal disagreed, set aside the decision of the trial judge and ordered him to pay lifetime spousal support of $1000 monthly.
In March 2013, the Supreme Court of Canada dismissed the leave application for a common law spouse who sought an equitable interest in the matrimonial home to avoid a constructive trust claim against a third party completed prior to the end of the relationship.
The definition of marriage in Canada is an evolving one. In November 2013, the Ontario Court of Justice in Novacasseres v. Nova Family Respite & MacKenzie Social Service Club Inc. recognized its first same-sex marriage.