Does Canada Recognize Common Law Marriage?

Do You Have to Live Together to Be Common Law in Ontario

Defining a relationship is sometimes tricky, even between yourselves. When taxes and other legal issues come into play, they can add an extra layer of complication!

A common area of confusion is what constitutes a common-law partnership. Many people are unsure of the definition of common-law in Ontario. Are you considered common-law as soon as you move in together? What if you’ve been a couple for many years but have never shared a home? Or what if you are still a couple but have stopped cohabitating? There are so many variables that it can sometimes be difficult to determine whether or not you are in a common-law partnership.

Legal Definition of Common-Law in Ontario

Legally speaking, living common-law means that you’re sharing a home with a person who is not your legal spouse, but with whom you have a conjugal relationship. You are living “common law” as soon as you commence living together. It is that simple at law.

For tax purposes, you have to have lived together for one year.

For the purposes of enjoying your partner’s extended health care benefits, it depends on the policy. You may have to have lived together for a year or more to enjoy benefits’ coverage.

If you separate, you cannot get spousal support from your common law partner unless:

  • You have been living together in a conjugal relationship for at least three years; or
  • You have a child together, through birth or adoption

The “living together” requirement is where things can sometimes get tricky. If you and your partner were separated involuntarily for reasons such as hospitalization, incarceration, or education, but had been living together previously, then you are still considered common-law. This also applies if your relationship had a brief breakdown, as long as you were separated for less than 90 days.

However, if you and your partner were apart for more than 90 days due to a breakdown in your relationship, or for reasons other than what is stated here, then you are no longer considered to be in a common-law partnership unless you meet one of the other two criteria.

Living Apart Together

When compiling statistics regarding people in relationships, the information is usually centred on couples who are defined as married and living together or living together in a common-law partnership. Those numbers do not account for people who are in a relationship but do not share a home. These couples are referred to as “living apart together,” or LAT.

According to Stats Canada, as of 2011, 7% of Canadians aged twenty and over were LAT. This means that approximately 1.9 million people in Canada were in a relationship with someone but were not living together. These couples are typically on the younger side. Statistics are available for several age groups:

  • Age 20-24: 31% are LAT
  • Age 25-29: 17% are LAT
  • Age 30-59: 3-5% are LAT

Of the couples who are identified as LAT, over 80% of the young adults plan to live with their current partner at some point in the future, compared with less than 30% of LAT couples aged 60 and over.

Living separately does not mean a lack of commitment. An Ipsos poll commissioned by Global News in 2018 found that 40% of the LAT couples in their sample group said that living apart makes their relationship stronger. However, couples who are LAT usually not considered to meet the definition of common-law in Ontario unless they qualify under one of the other two criteria cited above.

Cohabitation Agreements

In Canada, a common-law partnership is legally considered to be a de facto relationship, which means that each case is considered on an individual basis and will be established based on the facts of that specific relationship. Marriage is considered a de jure relationship, which is more clearly defined based on Canadian law.

Ending a common-law partnership has the potential to be more complicated than a divorce, since issues such as division of property and inheritance rights in common-law relationships are not clearly defined by law, as they are in marriage. It’s a very good idea to plan ahead for the possibility that your relationship will end by creating a cohabitation agreement.

This is similar to a prenuptial agreement, without the nuptials. It’s meant to protect each individual’s assets and lay out a straightforward guideline for dividing any joint property in case your relationship ends. This agreement can also lay out how any debts are to be settled, and can even include your wishes about spousal support. However, it cannot deal with issues of child support and custody, which are handled separately from your finances and may not be decided in advance of separation. 

Call Galbraith Family Law for Assistance

Are you unsure of all the legal implications of your common-law partnership? If you’re thinking of moving in with your partner and would like to discuss a cohabitation agreement, the professionals at Galbraith Family Law are here to help you. For a consultation, call (289) 802-2433 in the Newmarket area or (705) 302-1102 in Barrie. You can also send a message through our website.

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Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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