Common Law Separation
When you live with your partner in a spousal-like relationship, you may end up creating legal rights and obligations, which will need to be sorted out upon the breakdown of the relationship.These legal issues are similar to those experienced by married couples, but don’t let the similarities fool you; there are some important differences.
Dealing with Common Law Separation in Ontario
There are many similarities in the rules in relation to married couples and unmarried couples with respect to parenting, decision-making, child support and spousal support in Etobicoke. With respect to children, the guiding principle, as always, is the “best interests of the child.” This is the same principle used by the Courts when resolving issues related to decision-making and parenting time that apply to married couples. Child support in Ontario is governed by the Child Support Guidelines, which are almost identical to the Federal Child Support Guidelines. As for spousal support in Ontario, once a couple meets the test of an “adult interdependent relationship”, the Court will then apply the same objectives and guidelines to determining spousal support as it would for a married couple.
The most contentious issue is the division of property as it relates to unmarried couples. Unlike married couples, common law couples do not receive the same automatic right to equalization of net family property under the Family Law Act. Having said that, although unmarried couples do not receive this level of protection, this does not mean that they do not have any property rights, it just means that there is an added layer to asserting these rights. The degree that an unmarried person can enforce these rights varies greatly depending on the relationship itself and the specific property in question.
At Noori Law, we have handled many cases with respect to common law separation and property division and the rights of unmarried couples and we are ready to assist you. Please feel free to contact us to discuss your matter.
Frequently Asked Questions
What qualifies as a common-law relationship in Ontario?
In Ontario, you’re considered in a common-law relationship if you’ve cohabited continuously in a conjugal relationship for at least three years, or for one year if you share a child together.
Courts examine the genuine nature of your relationship, which means being roommates won’t qualify you. Inquiries may focus on shared finances, mutual commitment, public recognition of the relationship, and household arrangements.
Do common-law partners in Ontario have automatic property division rights?
No. Unlike married couples, common-law partners do not get automatic equalization of net family property under the Family Law Act. Instead, property claims rely on principles like resulting trust or constructive trust, where a court evaluates contributions, the relationship context, intentions, and fairness.
At separation, you’ll have to provide proof of contributions made to shared property. As your separation lawyer, we at Noori Law ensure your case is supported with strong claims. Book a consultation today.
Can I seek spousal support after a common-law separation in Ontario?
Yes. Under Ontario’s Family Law Act, common-law partners may be entitled to spousal support, despite not being spouses under federal divorce law.
You must claim support within one year of separation. Ontario courts length of cohabitation, roles performed during the relationship, incomes, and any sacrifices made for raising children or caregiving when calculating support. It may be compensatory, needs-based, or contractual depending on the context and party’s circumstances.
Do you recommend a separation agreement for common-law partners?
Absolutely. While there’s no formal separation process, a written separation agreement helps define roles, divide property, and clarify support or parenting arrangements. It preserves your rights and ensures enforceability. For example, if you’re dividing assets, deciding child custody, or outlining spousal support, putting these terms in writing avoids ambiguity.
Can a common law partner claim an interest in a home they did not legally own or pay the mortgage on?
Yes. Ontario courts may recognize a claim through constructive trust or unjust enrichment, but only after a complete review. They’ll consider non-financial contributions such as renovations, caregiving, or supporting the household. You should be able to show a link between your contributions and the property’s value, plus that retaining full ownership would be unfair.
When should a common law partner involve a lawyer before separating, not after?
You should speak with a lawyer once separation becomes likely, not once it happens. Early advice protects financial records, clarifies property exposure, and prevents damaging decisions. Starting early also gives you time to interview 3-4 separation law firms and make a choice that you feel most confident with.
How do courts determine whether a common law relationship actually existed if one party disputes it?
Your relationship will be assessed as a whole. Ontario courts assess cohabitation length, emotional and financial interdependence, shared decision making, public presentation as a couple, and household integration. Evidence may include tax filings, joint expenses, correspondence, and witness testimony.
Do child custody and child support rules change for common law partners compared to married couples?
No, parenting rights and child support obligations apply equally to married and unmarried parents. Courts focus on the child’s best interests, not marital status and child support follows the same federal guidelines. Decision making responsibility and parenting time depend on caregiving history, stability, and each parent’s ability to meet the child’s needs.