Most people have used or heard the word common-law to describe two people who are in a relationship, but few people know exactly what it means and even less know what rights or responsibilities come with being in a common-law relationship. The following are brief answers to three commonly asked questions:
a) What constitutes a common-law relationship?
In Ontario, a couple is considered to be in a common law relationship if they have cohabitated for a continuous period of not less than 3 years or they have been a relationship of some permanence and they are the natural or adoptive parents of a child.
b) What does cohabitation mean? Is it synonymous with living together?
Two people who are living together are not necessarily cohabitating. Living under the same roof is only one factor a court considers when assessing whether a couple is cohabitating. The other indicia of cohabitation include, but are not necessarily limited to; sexual relations, eating meals together, performing domestic services for each other, going out together socially, supporting each other financially, etc.
c) If I am in a common-law relationships what happens if we separate? Do I have the same rights as a married person?
a. Spousal Support – Common Law Couples do have the Same Rights
Section 29 of the Family Law Act provides individuals in a common law relationship with the same rights and responsibilities, with respect to spousal support, as married couples. If you have questions about your particular entitlement or obligation surrounding spousal support, please contact a member of our firm and we will be happy to assist you.
b. Property – Common Law Couples do NOT have the Same Rights
One of the most common misconceptions in this area is that common-law couples have the same rights as married couples with respect to property. The Ontario Family Law Act does not provide common law couples with ANY right to share in their partner’s property upon separation.
In certain circumstances, individuals may be successful in making an equitable claim to properties held solely by their common-law partner. However, this is an exception not found in the Family Law Act. If you have any questions about equitable remedies or your property rights generally, please contact a member of our firm to set up an appointment to discuss.
If you are living common law discuss with your partner your respective expectations on property issues and consider setting them out in a Cohabitation Agreement.
 Molodowichv. Penttinen, 1980 CanLII 1537 (ONSC) at para 16.