- WHEN ARE YOU A COMMON LAW SPOUSE?: In Ontario, a common law relationship is when you either reside with someone in a marriage-like relationship for at least three years, or you have a child, either by giving birth or adoption, and you are in a relationship of some permanence. A common-law spouse is defined by the Family Law Act in Ontario to assist couples to know when either of them may be entitled to spousal support should the relationship end. Other legislation, such as the Income Tax Act, uses other definitions as to what is considered “common-law” for the purposes of that particular legislation. A professional should be consulted when determining which rules will apply to you.
- SPOUSAL SUPPORT: Whether you are a married or common-law spouse and your relationship ends, you may be entitled to receive spousal support, although it is not automatic. You will need to speak with a family law lawyer for advice since it will depend on a number of factors and the law as it applies to you. In Ontario, the Spousal Support Advisory Guidelines (S.S.A.G.s) have been developed to provide the courts and separating couples with guidance in determining what amount of spousal support may be paid and for how long. Not everyone will be entitled to receive spousal support but if you are, you will require legal advice to help you receive a fair amount, by either including it in a negotiated Separation Agreement or by a court Order. The S.A.G.s, unlike the Child Support Guidelines (C.S.G.s), are not mandatory when determining spousal support but they are of assistance in providing a range of amounts and the duration of the payments. Also, unlike the C.S.G.s, tax is payable on spousal support received and is a tax credit to the payor.
- PROPERTY: If you are not married, you do not have an automatic right to share your common-law spouse’s property, however, you may still be entitled to some money from your common-law spouse, depending on the circumstances, for example, if one party has been unjustly enriched as a result of the contributions from the other party. Your family may also be considered a “Joint Family Venture”, which term has been defined by the Supreme Court of Canada. A family law lawyer can advise you about your particular situation. There are no black and white rules or guarantee that you may be entitled to a sharing of property which is why legal advice is needed to help you through the process and if, necessary, to argue the issue in court.
- YOUR FAMILY HOME: If you are not married and your common-law spouse owns the home you live in during the relationship, you have no legislated right to remain in the home should your common-law spouse insist that you leave. The best way to protect your rights to both live in the home and to a share in its value is to sign a Cohabitation Agreement with your common-law spouse that has been prepared by lawyers. Both common-law spouses need their own legal advice to review all of their obligations and rights before signing the Agreement to ensure that they are fully aware of what the agreement means and how it will affect them.
- CHILDREN: Whether you are a married or a common-law spouse, the same rules apply when deciding who is going to make decisions for the children, where they will live, and how much child support will be paid. Legal advice is crucial before determining these issues and signing a Separation Agreement or going to court.
DISCLAIMER:
This handout is provided as an information service by Rasmussen Starr Ruddy LLP. It is distributed with the understanding that it does not constitute legal advice or establish a solicitor-client relationship by way of any information contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision-making. Please consult with us and obtain a written opinion concerning the specifics of your particular situation.
