Are You in a Common Law Relationship?

You might assume that as a common-law partner, you have the same rights and responsibilities as married spouses – but that isn’t true.
Understanding Ontario’s common law and the differences between married spouses and cohabiting partners is essential to safeguard yourself if your relationship ends. 
Two people are considered common-law partners if they have lived together in a conjugal relationship for at least three years. However, if they have a child together, either by birth or adoption, they only need to have lived together for one year.
In Canada, a “conjugal relationship” goes beyond a sexual connection. It involves two people sharing a home, finances, social circles, and an emotional bond, in addition to having a sexual relationship.

Ontario Common Law and Family Property

Under the Family Law Act (FLA) in Ontario, married spouses benefit from an equal division of financial gains accrued during the marriage. This is determined by calculating each spouse’s net family property (NFP) and requiring the wealthier spouse to pay half the difference to the other. Spouses generally have freedom to dispose of assets, except for the matrimonial home, which is subject to special protections. However, the FLA property division regime applies only to “spouses” as defined under section 1 of the Act, meaning it exclusively applies to married spouses. Cohabiting partners, therefore, are not entitled to an equalization of family property under the FLA.
This distinction has faced scrutiny, but in Nova Scotia v. Walsh, the Supreme Court of Canada upheld the differentiation, reasoning that it is not discriminatory because marriage represents a deliberate choice distinct from living in a common-law relationship.

Remedies for Common Law Spouses

While common law partners are excluded from FLA property division, they can seek remedies under common law, primarily through constructive trusts based on unjust enrichment (as established in Pettkus v. Becker and Kerr v. Baranow). A constructive trust allows a common law partner who does not hold legal title to claim rights to a specific property, such as the matrimonial home, if they contributed significantly to its acquisition or maintenance.
For example, a common law partner who stayed home to care for children and performed domestic duties may be entitled to either a monetary award or a constructive trust over the property if their contributions are directly connected to it.

Requirements for a Constructive Trust

To obtain a constructive trust order, the applicant must satisfy four criteria:

1. Enrichment: That by their contribution of money or labour, they enriched the legal titleholder of the property in question;
2. Deprivation: enrichment of the other spouse resulted in a corresponding deprivation to the contributor;
3. Absence of Juristic Reason: There is no juristic reason for the enrichment;
4. Connection to Property: There is a connection between the contribution made and the acquisition or improvement of the property in question.

If the fourth requirement is not met, courts only award monetary damages rather than granting rights to the property itself. Additionally, property awards are proportional to the level of contribution made by the claimant. This framework provides an avenue for common law partners to seek justice despite their exclusion from statutory property division under the FLA.

Possession of the Matrimonial Home

The matrimonial home is treated uniquely under Ontario’s Family Law Act (FLA). Regardless of which spouse holds legal title, both spouses have an equal right to possession of the matrimonial home (s. 19, FLA). Even a marriage contract entered into before the marriage or cohabitation cannot override this right (s. 52(2), FLA). Furthermore, the court has the authority to issue an order for exclusive possession of the matrimonial home, irrespective of ownership (s. 24(1)(b), FLA). These protections exist to safeguard possessory rights, often to prevent domestic violence or to minimize disruption for children.

Factors Considered for Exclusive Possession

When deciding whether to grant exclusive possession, the court considers:

1. The best interests of any children affected;
2. Existing family property or support orders;
3. The financial circumstances of both spouses;
4. Any written agreements between the parties;
5. The availability of suitable alternative accommodations; and
6. Any history of violence committed by a spouse against the other or the children.

It is important to note that these provisions under Part II of the FLA apply only to married spouses. Unmarried cohabiting spouses do not have access to the same possessory rights.

Options for Unmarried Cohabiting Spouses

While unmarried partners cannot rely on the matrimonial home provisions under the FLA, they may pursue other legal options:

1. Spousal Support Claims for the Matrimonial Home
2. Cohabiting partners who have lived together for at least three years, or are in a relationship of some permanence and have a child together, may apply for spousal support that includes rights to the matrimonial home (s. 29, FLA). Under s. 34(1)(d) of the FLA, courts may issue interim or final orders concerning the matrimonial home.
3. Constructive Trust
4. Although it does not grant exclusive possession, a constructive trust may provide a cohabiting partner with joint equitable interest in the home. This interest includes shared possessory rights, allowing both parties an equal right to reside in the home.
5. Restraining Orders
6. Under s. 46(2) of the FLA, a court may issue an interim or final restraining order against a current or former spouse, or a cohabiting partner, if there are reasonable grounds to fear for the safety of the applicant or their child (s. 46(1), FLA).
7. Criminal Bail Conditions
8. In cases where a cohabitant is criminally charged, bail conditions may prohibit the offender from entering the matrimonial home.

Common Law Relationships and Division of Assets

Under the Family Law Act (FLA), R.S.O. 1990, c. F.3, equalization of net family property applies only to couples who meet the definition of “spouse” under s. 1(1):

• Spouses are defined as two individuals who:
  1. Are married to one another, or
  2. Have entered into a marriage (voidable or void) in good faith, relying on that status to assert rights.

This definition includes polygamous marriages recognized as valid in the jurisdiction where they were celebrated.

Property Division in Common Law Relationships

For couples in a common law relationship, the property acquired during the relationship is typically owned by the individual holding legal title. In the event of separation, assets are divided based on ownership. Unlike married couples, common law partners do not benefit from the net family property calculation or equalization payments.

Options for Common Law Partners

If you are or were in a common law relationship and believe you should be entitled to an interest in or compensation for contributions made toward property acquisition, preservation, or maintenance, you may pursue the following:

1. Request Reimbursement: Ask your partner to compensate you for financial or non-financial contributions made toward the property.
2. Legal Claims: If an agreement cannot be reached, you may bring one of the following claims in court:
   • Resulting Trust
   • Constructive Trust
   • Unjust Enrichment

Resulting Trust

A resulting trust arises when one partner contributes financially to the acquisition of a property, but legal title is held by the other. This remedy ensures the contributor retains an interest proportionate to their financial input.

Courts presume a resulting trust where contributions to property acquisition were made with the mutual intention that both parties would share in the property’s benefits. For example, if property purchase funds come from a joint bank account to which both partners contributed, this may indicate a resulting trust.

Outcome: Upon separation, the contributor is entitled to a share proportionate to their input, either as joint ownership or sole ownership.

Constructive Trust

A constructive trust allows a partner to claim an interest in property they do not legally own if their contributions—financial or non-financial—enhanced its value or acquisition. This remedy prevents unfair enrichment of one party at the other’s expense.

Establishing a Constructive Trust:
Courts apply the test for unjust enrichment:

1. One partner was enriched;
2. The other partner experienced a corresponding deprivation;
3. There is no legal or juristic reason for the enrichment, such as a gift or contract.

Causal Connection: The claiming partner must show a direct link between their contribution and the property in question. Contributions may include:

• Financial input toward acquisition or improvement of the property.
• Non-financial contributions, such as:
  • Providing child care, enabling the other partner to earn income.
  • Managing domestic responsibilities (e.g., cooking, cleaning, laundry) to support the other partner’s career and property acquisition.

Key Considerations:

• Contributions to property preservation or improvement may also qualify.
• The value of the constructive trust is proportionate to the contributions made. Unequal contributions result in unequal shares.
• Non-financial contributions must not have been compensated to qualify as grounds for a constructive trust.

Unjust Enrichment

Unjust enrichment claims may be pursued independently or alongside resulting or constructive trust claims. These claims address situations where one partner benefits unfairly at the other’s expense without a legal basis.
By leveraging these legal remedies, common law partners can assert their rights and seek equitable resolutions in property disputes.

At Progressive Legal Solutions, we focus on family law issues, and our knowledgeable divorce attorneys are here to assist you in managing any type of separation smoothly.

Written by: Keanin Parish