How the Law Views Cohabiting Couples in Ontario

Legal Recognition of Cohabiting Couples in Ontario

Current Legal Status

In Ontario, the legal recognition of cohabiting couples, often referred to as common-law relationships, differs significantly from that of married couples. Unlike marriage, which automatically confers certain rights and obligations, cohabiting couples must navigate a more complex legal landscape to establish similar protections. In the eyes of the law, a cohabiting couple in Ontario is recognized as a common-law couple if they have lived together in a conjugal relationship for at least three years, or if they have a child together and have been living together in a relationship of some permanence.

This distinction is crucial because, while common-law couples may enjoy certain benefits similar to those of married couples, such as spousal support, they are not automatically entitled to the same property rights upon separation. The division of property, for example, is not governed by the same rules as it is for married couples. Instead, common-law partners must rely on equitable remedies such as constructive or resulting trusts to claim a share of assets acquired during the relationship.

Key Legislation

Several key pieces of legislation govern the rights and obligations of cohabiting couples in Ontario. The most significant of these is the Family Law Act (FLA), which outlines the circumstances under which common-law partners may be entitled to spousal support. Under Section 29 of the FLA, a common-law partner is eligible for spousal support if they have lived together continuously for at least three years or if they are in a relationship of some permanence and have a child together.

In addition to the FLA, other statutes and legal provisions come into play, particularly in areas such as estate law, pensions, and benefits. For example, under the Succession Law Reform Act, a common-law partner is not automatically entitled to a share of their partner’s estate if they die without a will. This contrasts sharply with the rights of married spouses, who have a statutory entitlement to a portion of their deceased spouse’s estate. Common-law partners must instead rely on claims for dependent’s relief under the SLRA if they wish to assert a claim to their deceased partner’s estate.

Rights and Obligations of Cohabiting Couples

Property and Asset Division

For cohabiting couples in Ontario, the division of property and assets upon separation is significantly different from that of married couples. Unlike married spouses, who are entitled to an equalization of net family property under the Family Law Act (FLA), cohabiting couples do not have an automatic right to share in the property accumulated during the relationship. This difference is grounded in the legal principle that cohabitation does not, in itself, create property rights.

Recent case laws have brought clarity to how property and asset division is approached for cohabiting couples. Courts have increasingly relied on equitable doctrines such as constructive trust and resulting trust to address the property claims of common-law partners. For example, in the landmark case of Kerr v. Baranow (2011), the Supreme Court of Canada set a precedent by recognizing that a common-law partner may have a constructive trust claim to a share of property if they have contributed to its acquisition, maintenance, or improvement, even if their name is not on the title.

Furthermore, the case of Henderson v. Henderson (2018) reaffirmed that the mere fact of cohabitation does not entitle one partner to an equal share of assets; instead, the partner seeking a share must demonstrate that they made significant contributions to the property. These contributions could be financial, such as paying a portion of the mortgage, or non-financial, such as homemaking or child-rearing, which directly or indirectly benefited the property’s value.

Support and Maintenance

The issue of spousal support among cohabiting couples in Ontario is governed primarily by the Family Law Act. As mentioned earlier, common-law partners are eligible for spousal support if they have lived together for at least three years or have a child together and have been in a relationship of some permanence.

Children and Parental Rights

When it comes to children and parental rights, recent case laws have increasingly recognized the complex realities of cohabiting couples. The rights and responsibilities of cohabiting parents in Ontario are generally treated similarly to those of married parents, especially concerning child custody, access, and support. However, the unique circumstances of cohabitation often require the courts to adopt a more nuanced approach.

The case of Van Rassel v. Van Rassel (2020) illustrated how Ontario courts prioritize the best interests of the child when determining custody and access rights, regardless of the parents’ marital status. In this case, the court granted joint custody to cohabiting partners, acknowledging that both parents had been actively involved in the child’s upbringing. The ruling emphasized that the lack of formal marriage does not diminish a parent’s rights or obligations towards their child.

Navigating Legal Challenges as a Cohabiting Couple

Legal Protections and Agreements

For cohabiting couples in Ontario, the absence of automatic legal protections that married couples enjoy can lead to significant challenges, especially when relationships break down or when one partner passes away. One of the most effective ways to protect the rights and responsibilities of each partner in a cohabiting relationship is through the creation of cohabitation agreements.

This agreement is crucial because, unlike married couples, common-law partners are not entitled to an equal division of property upon separation under Ontario’s Family Law Act. Instead, they must rely on equitable remedies or pre-established agreements to claim any share of property or assets.

Steps to Take

Navigating the legal complexities of cohabitation in Ontario requires proactive planning and an understanding of the potential challenges that may arise. Here are some practical steps cohabiting couples can take to safeguard their interests and navigate legal challenges:

1. Draft a Cohabitation Agreement: As previously mentioned, one of the most critical steps is to draft a cohabitation agreement that clearly defines the rights and responsibilities of each partner. This agreement should cover aspects such as property ownership, division of assets, spousal support, and arrangements for children, if applicable.  
2. Maintain Financial Records: These records can serve as evidence to support your claims to property or assets that may not be jointly owned but to which you have contributed.
3. Understand Your Rights and Obligations: It’s important for both partners to understand their legal rights and obligations under Ontario law. This includes understanding the implications of living together for three years or having a child together, which can trigger certain rights and obligations under the Family Law Act. Being informed can help prevent misunderstandings and ensure that both partners are prepared for potential legal challenges.
4. Consider Estate Planning: Cohabiting couples should also consider estate planning to protect each other in the event of one partner’s death. Unlike married couples, common-law partners do not automatically inherit each other’s estates under the Succession Law Reform Act. To ensure that your partner is provided for, you may need to draft a will that explicitly names your partner as a beneficiary or consider other estate planning tools, such as trusts.
5. Seek Legal Advice Early: A lawyer can assist in drafting cohabitation agreements, advising on property ownership structures, and providing guidance on spousal support and other relevant issues.

Comparing Legal Treatment with Married Couples

Differences in Legal Treatment

In Ontario, the legal treatment of cohabiting couples, often referred to as common-law partners, differs significantly from that of married couples. Understanding these differences is crucial for cohabiting couples, as the legal rights and obligations they hold can be less comprehensive compared to those afforded to married couples.

1. Property and Asset Division: One of the most significant differences between cohabiting and married couples is how property and assets are treated upon separation. Under the Family Law Act (FLA), married couples are entitled to an equalization of net family property, meaning that all property acquired during the marriage is divided equally upon divorce, with certain exceptions. However, cohabiting couples do not have this automatic right. Instead, common-law partners must prove their entitlement to property through claims of constructive or resulting trust, which requires demonstrating a direct contribution to the acquisition or maintenance of the property. This often leads to more complex and uncertain outcomes for cohabiting couples compared to their married counterparts.
2. Spousal Support: While both married and cohabiting partners may be entitled to spousal support, the criteria for eligibility differ. Married couples automatically qualify for spousal support upon separation, whereas common-law partners must meet specific criteria under the FLA, such as having lived together for at least three years or having a child together in a relationship of some permanence. This distinction can leave some cohabiting partners without financial support, particularly if the relationship was short-term or if they do not meet the statutory requirements.
3. Inheritance Rights: Inheritance laws also treat married and cohabiting couples differently. Under the Succession Law Reform Act (SLRA), married spouses have a statutory right to a portion of their deceased partner’s estate, even if they die without a will (intestate). In contrast, common-law partners do not have the same automatic inheritance rights. If a common-law partner dies intestate, their surviving partner must either be named in the will or make a dependent’s relief claim under the SLRA, which is not guaranteed to succeed. This difference highlights the importance of estate planning for cohabiting couples to ensure that their wishes are honored.
4. Pension and Benefits: Married spouses typically have access to a wider range of pension and survivor benefits compared to common-law partners. For instance, the Pension Benefits Act allows for survivor benefits to be paid to a married spouse, but a common-law partner must prove that they were in a conjugal relationship with the deceased for at least three years to qualify. This requirement can create additional hurdles for common-law partners seeking financial support after their partner’s death.