By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration

With common law unions on the rise, many Canadian couples lack clarity on how their rights and obligations differ from married spouses. This article aims to empower cohabiting partners to make informed choices during their relationship and in case of separation.

1. The Growing Trend Towards Cohabitation

Common law relationships are increasingly popular across Canada, with over 1.7 million cohabiting couples based on recent census data. Specifically, major Ontario cities like Toronto, Mississauga, Markham, Brampton, Oakville, and Vaughan have seen sizable growth, with over 18% of couples opting for cohabitation over formal marriage.

2. Defining a Common Law Relationship

A common law relationship refers to two persons who are not legally married but have cohabited in an intimate, conjugal partnership. In order to make a claim for spousal support the couple are required to be in a conjugal relationshipfor a minimum of three years or have had a child together. These domestic partners share a family life and present publicly as a committed couple, but have not formalized their relationship through marriage.

3.  Key Differences from Marriage

While similar in day-to-day lifestyle, some key family law distinctions between cohabiting under common law rather than formal marriage include:

  • No registration – Common law couples do not obtain a marriage license or have a ceremony.
  • No divorce – Common law partners can separate simply by moving out, no complex legal process is required.
  • Limited protections – Unmarried couples lack certain automatic legal rights married spouses receive by default under Ontario’s Family Law Act.

4.  Property and Asset Division

The major area where cohabiting couples differ from married spouses is in the division of property and assets if the relationship ends.

For married couples, Ontario family law provides an equalization regime wherein, generally, all property acquired during marriage gets valued and the increase in net worth is equalized between spouses.

For common law couples, ownership and trust claims govern the property regime, whereby:

  • Only jointly shared assets get divided
  • Non-owner partners must actively demonstrate they contributed to purchasing or improving an asset to claim an interest
  • No automatic equalization regime exists.

Without taking proactive legal steps like cohabitation agreements to protect interests in assets under their partner’s name, common law couples cannot rely on any automatic property protections.

We generally advise clients to have a cohabitation agreement if acquiring major assets together to prevent later conflicts” – Cheryl Goldhart, Family Lawyer

5.  Parenting and Child Support

When children are involved, Ontario family law treats common law and married couples identically regarding:

  • Parental rights and duties
  • Child support payment obligations per Child Support Guidelines
  • Access to tax benefits like the Canada Child Benefit

The existence of a parent-child relationship overrides marital status considerations here.

My advice is that unmarried couples with children create a formal co-parenting agreement” – Michelle Sample, Family Lawyer

6.  Spousal Support

While married spouses have a well-established right to claim spousal support upon separation based on amongst other factors, the length of cohabitation, common law partners must prove that they have been in a continued conjugal relationship for at least 3 years or have a child together to have standing to make a claim for spousal support

Most common law couples separate without pursuing spousal support. Those who do should consult a lawyer to document financial need. Again, using a cohabitation agreement is also suggested.

7. The Need for Cohabitation Agreements

Since, in certain respects, cohabitation does not offer the automatic legal protection of marriage, cohabitation agreements are very strongly advised for all common law couples. Benefits include:

  • Clarifying asset ownership and division
  • Defining spousal support responsibilities
  • Avoiding prolonged court battles
  • Customizing terms as desired

Typical sections in such agreements cover property division, spousal support, dispute resolution procedures, and more.

8.  Ending a Common Law Relationship

Dissolving a common law union differs from divorce. No complex legal process is required – unmarried partners can separate by simply moving out and living apart. However, they must still handle separation details like:

  • Dividing assets and settling debts
  • Making child arrangements
  • Arranging potential spousal and child support

Hiring a family law mediator often helps common law couples negotiate fair separation terms.

9.  Summing Up

The following summarizes certain of the distinctions between married couples and cohabiting couples with respect to family law issues.

Family Law Issue Married Couples Cohabitating Couples
Legal Recognition Marriage is legally recognized from the date of the marriage ceremony. No ceremony or licence required
Separation Process Requires a formal divorce process, involving legal procedures to dissolve the marriage. Can separate without a formal divorce. Separation is typically simpler but still involves negotiation or litigation for asset division and parenting issues and support obligations.
Property and Asset Division Subject to equalization of net family properties under the Family Law Act. All property acquired during the marriage (with certain exceptions) is equalized No automatic equalization. Division is based on ownership and contributions to the property. Claims may involve constructive or resulting trusts.
Spousal Support Rights to spousal support are well-established and may be presumptive based on need and ability to pay The couple must be in a conjugal relationship for 3 years or have a child for standing to claim spousal support
Child Support Treated identically to cohabitating couples. Both parents have obligations for financial support according to Federal Child Support Guidelines. Identical to married couples. Obligations to support children financially are the same, based on provincial Child Support Guidelines.
Parental Rights Equal rights and duties concerning child decision-making and parenting time, based on the child’s best interests. Equal rights and duties concerning child decision-making and parenting time, identical to married couples, based on the child’s best interests.
Estate Rights Automatic rights to inherit under provincial estate laws in the absence of a will. No automatic inheritance rights under provincial estate laws without a will. Cohabitants must be specifically named in a will to inherit.
Tax Benefits and Credits Eligible for spousal tax credits and benefits, joint filing benefits, and other tax advantages. May qualify for some tax benefits if they have lived together for 12 consecutive months or have a child, but not automatically entitled to spousal tax credits.

11.  Getting Legal Advice

Given the complex legal landscape, consulting a family lawyer is strongly recommended when:

  • Forming or ending a common-law relationship
  • Drafting a cohabitation agreement
  • Addressing parenting, child and spousal support matters
  • Dividing property and finalizing separation

An experienced professional can offer tailored advice on equitable division of assets, spousal support eligibility, enforceable agreements suited to your situation, and more. Do not presume common law confers equivalent rights to formal marriage.

For compassionate legal guidance on cohabitation agreements, common law separations, or any family law needs, the team at Goldhart Law has more than 40 years of specialized experience.

Contact us today for clarity and peace of mind.

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Cheryl Goldhart is a family law lawyer who can make a difference in resolving your family disputes.

  • Nearly 40 Years of Dedicated Family Law Practice: Cheryl has nearly four decades of experience practicing family law exclusively.
  • Master’s Degree in Counselling: Cheryl’s educational background includes a Master’s Degree in Counselling, providing her with a unique combination of empathy and insight for handling your case.
  • Certified Family Law Specialist by the Law Society: Cheryl’s expertise in family law is reflected in her certification as a Family Law Specialist.
  • Accredited Family Mediator by OAFM: The Ontario Association for Family Mediation has accredited Cheryl expertise as a family law mediator.
  • Arbitration Expertise Acknowledged by ADR Institute: Cheryl’s professional designation from the ADR Institute of Ontario highlights her recognized arbitration expertise.
  • Award-Winning Contributions to Family Law: Cheryl’s significant contributions to the field of family law have been recognized with numerous awards and honors, including the prestigious Award for Excellence in Family Law from the Ontario Bar Association.

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Law Professional Corporation is not responsible for any actions taken based on the information presented in this blog.

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