If you are in a common law relationship, it’s important to recognize that there is no formal process for a separation and no need for a divorce.

In Ontario, common law relationships involve two people who live together in a conjugal relationship for a certain period but are not legally married. The dissolution of such a relationship involves different legal considerations compared to a formal divorce.

Common Law Relationships in Ontario

In Ontario, a common law relationship is legally recognized if:

• The couple has lived together for at least three years in a conjugal relationship; OR
• The couple has lived together for one year, if they have a child together, by birth or adoption.

Legal Process for Common Law

Unlike married couples, at the dissolution of the relationship, common law partners do not possess the same legal rights and obligations towards one another. The legal process for ending a common law relationship involves resolving some issues without the formalities of a divorce.

Unlike married couples who must file for divorce, common law partners simply separate and then address their family issues through negotiation, mediation, or court proceedings, if necessary.

Property Division

One of the main distinctions between the dissolution of a common law relationship and a legal marriage is property division.

In a divorce, the Family Law Act governs the division of property, aiming for equalization of the assets and liabilities acquired during the marriage. This includes the matrimonial home, which is often divided equally regardless of whose name is on the title.

In contrast, common law couples do not have the same automatic property rights flowing from legislation.

In common law relationships, property rights may derive from a few circumstances:

• If you and your partner purchased property together, and each contributed a share in purchasing the property, you may be entitled to your appropriate share; or
• If you and your partner entered a cohabitation agreement, specifying the entitlements and responsibilities in relation to property, among other things, at the dissolution of the relationship; or
• If you made non-financial contributions to the relationship, you may be entitled to make a claim for unjust enrichment or a constructive trust. To establish this claim, you should speak with a family law lawyer.

Spousal Support

Unlike for property, Part 3 of the Family Law Act governs support, which also applies to common-law couples, given that your relationship meets the definition of a common-law relationship.

The eligibility for spousal support in common law relationships typically requires that the couple lived together for at least three years or have a child together and have been in a relationship of some permanence. Generally speaking, the calculation of spousal support is similar to that of married couple, with a few exceptions and/or factors. To learn more, you should consider speaking with a family law lawyer.

Child Support, Custody and Access

The best interests of the child are paramount in determining custody, access and decision-making responsibilities, and both parents are typically responsible for providing financial support to their children.

When it comes to children, the laws governing support, parenting, access, custody and decision-making responsibilities, apply equally to both common law and legally married parents, albeit in different legislations.

Child support is determined in the same manner for married and common law relations, which is based on the Child Support Guidelines under the Divorce Act or the Family Law Act.

For common law partners, the Children’s Law Reform Act governs child custody and access

Whether dealing with a common law separation or a legal divorce, seeking professional legal advice can help ensure a fair and equitable resolution for all. At Gosai Law, it is our job to guide you through these differences and help you understand your rights.

Contact us here or call us during regular business hours at (905) 595-2225.