Common Law Separation in Ontario: What Changes and What Stays the Same

Many people in Ontario live together without marrying. When a common-law relationship ends, the legal position is different from a married separation in some important ways, and the same in others. This article explains the main differences in plain language. It is general information, not legal advice.

What common law means in Ontario

There is no single legal definition of common law that applies to everything. Different laws use different tests. For spousal support under Ontario’s Family Law Act, two people are treated as spouses 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. Federal tax rules and immigration rules use their own definitions, so it is possible to be common law for one purpose and not for another.

What stays the same

Parenting time and decision-making responsibility

The rules about children do not depend on whether the parents were married. Parenting time and decision-making responsibility are decided on the best interests of the child, using the same factors for married and unmarried parents. Parents can record their arrangements in a written agreement or ask the court to decide.

Child support

Child support is calculated under the Child Support Guidelines in the same way for all parents. Marriage is irrelevant. Both parents have an obligation to support their children according to their income and the parenting arrangement.

Spousal support

Common-law partners who meet the Family Law Act definition of spouse can claim spousal support. Whether support is payable, and how much, depends on factors such as the length of the relationship, the roles each person took on, and each person’s needs and means. The Spousal Support Advisory Guidelines are commonly used as a reference for married and common-law couples alike.

What is different

No equalization of property

This is the biggest difference. Married spouses in Ontario share the increase in their net worth during the marriage through a process called equalization of net family property. That scheme does not apply to common-law partners. In general, each partner keeps the property that is in their own name, and jointly owned property is divided according to the ownership shares.

A common-law partner who contributed to property in the other person’s name may still have a claim based on unjust enrichment or a joint family venture. These claims depend heavily on the facts and can be complex, which is one reason written agreements are valuable for unmarried couples.

The family home

The special protections that apply to a matrimonial home, such as the rule that both spouses have an equal right to possession regardless of whose name is on title, do not apply to common-law partners. The home is treated like any other property: ownership follows title, subject to any claim for unjust enrichment.

No divorce required

Common-law partners do not divorce, because there is no marriage to dissolve. The relationship ends when the partners separate. There is no court application to end the relationship itself, although court applications may still be needed to resolve parenting, support or property disputes.

Agreements for common-law couples

Unmarried couples can sign a cohabitation agreement while living together, setting out how property and support will be handled if they separate. On separation, they can sign a separation agreement, just as married spouses do. In Ontario, both kinds of agreement must be in writing, signed by both people, and witnessed, and independent legal advice for each person is strongly recommended. Our Separation Agreements page explains what an agreement usually covers and when an agreement can be set aside.

Practical first steps

If you are separating from a common-law partner, it helps to gather basic financial information for both people, note the dates the relationship began and ended, and think about the arrangements for any children. Deadlines can apply to some claims, so it is worth getting advice early. Mida Law works with separating couples in North York, Toronto and across Ontario, with most meetings held by secure video and services offered in English, Urdu, Bangla and Hindi.