The rules for common marriage in Canada vary from province to province. It’s important to understand these laws because they have various implications on taxes, situations with children, property, and more.
Having a good understanding of where you sit in terms of your relationship status can help you and your partner plan for the future, deal with issues in the case of separation and reap whatever financial benefits you might be eligible for.
We’re going to take a look at the common law Ontario laws today, giving you some insight into what they are and how they might apply to you.
Let’s get started:
Common Law Ontario: Fundamentals to Understand
In Ontario, a couple is considered to be in a common-law relationship if they’ve lived together for a period of three or more years. That number is subject to change a little bit if the couple has a child before that time, but has lived in the same place for a significant period of time.
In most cases, it takes at least one year for a couple to be in “cohabitation.” Having a child before that time period closes might not allow that couple to be considered for common-law status.
The specifics of each relationship might make a couple more or less likely to be considered common-law in the eyes of the Canadian government. Canada holds that common-law relationships are “de facto,” which means that individual relationships must be examined on a case-by-case basis.
It’s important to have a clear understanding of what cohabitation means in Canada, though, because there are a lot of circumstances that can blur the lines of who is “living together,” and sometimes separations occur that make things tricky as well.
Let’s take a look at what the Canadian government says about cohabitation.
In the most general sense, two people who are cohabitating are living together. When it comes to the term being used in relation to common-law marriage, it refers to a couple that has combined their personal affairs and has lived together for at least one year.
In the eyes of the federal government, cohabitation requires one year, while Ontario holds that it requires two.
Those individuals must have been living together continuously for that time period as well. Relationships often result in staggered instances of cohabitation that might not qualify as continuous.
There are different factors that might influence that status before or after a couple is considered common-law, though, and those factors are prevalent across relationships, so they’re important to understand.
Even if you haven’t experienced one of the circumstances below, you very well could in the future and it’s important to know how they’ll affect your relationship status.
How Temporary Physical Separation Impacts Your Status
A general rule of thumb to use when you’re wondering how temporary separation in distance will affect your status is to think of what your living situation would be under ordinary circumstances.
If you and your partner would ordinarily be living together, then you’re still cohabitating. In other words, a long business trip or a temporary move for schooling wouldn’t change that fact.
The condition is that you have lived together for one year and that you’re going to return to each other as soon as possible. Some other conditions that might separate couples are political unrest, a death or illness in the family, or some other temporary factor.
When these circumstances are in place and you’re asked to prove your relationship, you should be able to display some kind of evidence that you’re planning on continuing the relationship and that the separation isn’t a result of a break up of some kind.
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If One Party has Previous Marriages or Relationships
It could be the case that you or your partner was previously married or has been in a common-law relationship in the past.
You might be in a situation where one of the individuals in your relationship is still married to someone else. This would be an instance where separation occurred, but the divorce papers haven’t yet been finalized.
You can still be considered in a common-law relationship in this instance. What matters is that the person who is married has been apart from their legal spouse for at least one year and that the two individuals in the new relationship have cohabited for one year as well.
Cohabitation with a new partner after separation from the spouse must begin when that spousal separation actually occurs. For example, an affair might have been the reason for divorce in some instances, or maybe a separation occurred and the couple still lived together for practical reasons.
The start of the new relationships cohabitation must begin after the married individual moves apart from their spouse.
You must also display documentation that the divorce is underway and that the married person has started taking significant steps to separate legally from their spouse.
For example, evidence that insurance policies are split, child custody has been arranged, and other legal evidence that things have ended.
Relationships That Are Excluded
There are many combinations of relationships that can occur which might have you confused as to whether or not you can qualify for common-law status.
The first thing to establish is that a relationship cannot qualify for common-law status if there are more than two individuals participating in it. Polygamous relationships aren’t able to get the benefits that the legal status allows.
Further, relationships are not up for consideration if either of the people involved is under the minimum age of consent, one of the partners is incarcerated, or if the relationship is incestuous.
Both individuals must be at least 18 years of age for their cohabitation status to begin, even if they had been living with one another before one or both reached the age of 18.
Factors Specific to Ontario
Ontario laws are arguably the most confusing when it comes to common-law relationships. Other provinces treat these relationships exactly the same as, or very close to the way they do with couples who are legally married.
In Ontario, however, the rules aren’t that way. This is can be difficult when it comes to separating from a relationship that involves a lot of shared property and wealth.
When it comes to separating wealth in common-law relationships in Ontario, the courts tend to grant the property to whoever is on the title. This makes it difficult to deal with property distribution if your partner dies suddenly without a will and testament to give property in their name to you.
In other words, Ontario doesn’t grant you any claim to your partner’s possessions or estate. One fortunate thing is that child custody proceedings are handled in the exact same way, no matter if you’re legally married, in a common-law relationship, or some other arrangement.
The fact that common-law arrangements aren’t given as much precedent in Ontario might put you in a precarious situation, though. It’s important to take some extra precautions so that you’re taken care of in the event of an untimely death.
Remember that common-law partners are legally entitled to only property that they had when they entered the relationship, and that which they purchased or are on the title of.
Precautions to Take for You and Your Partner
Couples who are legally married are bound financially in the eyes of the court and don’t have to worry as much about how their possessions will be handled in the event of their passing.
This is a great comfort to those individuals, but it’s a different story for common-law relationships. In order to allow your partner to keep and benefit from your estate, it’s important that you have a will drawn up as soon as possible.
It might seem like a strange thing to create a will as a young person, but it’s incredibly important, especially if you and your partner are dependent upon each other financially.
Take for example, an instance where you and your common-law partner live in a home together. You might both make the mortgage payments and depend upon the equity for your future, but you’re the only one listed on the deed.
If this is the case and you pass away, your partner might not be entitled to inherit that home if they’re not listed in your will. While there may be a lot of people in your life who understand your relationship and would testify that your partner should receive the home, you never know how that situation could play out in court.
Potential Options for Separation
There are some steps that common-law partners can take to get what is rightfully there’s if a partner dies and they’re not granted pieces of the deceased’s estate. The same goes for circumstances where separation occurs and one partner feels that they’re owed more of the shared estate.
A constructive trust claim can be made if a partner can prove that they made substantial contributions to the home, especially if those contributions were financial or lead to the increased value of the property.
For example, if one partner contributed half of the mortgage payments and could prove that, they would have a good claim. Additionally, financial investments into repairs and renovations that increased the property value are also good claims for compensation.
There are also instances where one can make an unjust enrichment claim. These are claims made when one partner has benefited from the financial or personal contributions of the other. For example, one partner might have contributed significantly to a business venture that both partners wanted to go through together.
The profits from that effort might have wound up in just one of the partners’ bank accounts. If the partner holding the money at the time of separation didn’t want to part with the money, the other partner would have good ground to successfully make an unjust enrichment claim.
One great way to ensure that everything is in place for you and your partner is to draw up a cohabitation agreement. This is a legally binding document that resembles a prenuptial agreement that married couples sometimes use.
Essentially, the cohabitation agreement draws out the way that the couples’ estate should be split in the event of a death or separation. This document protects both partners and makes the distribution of estates far easier should the time come to do so.
It’s also possible to adjust these agreements as time goes on and your financial relationships become more complex. For example, if the two of you start a business together or you take on more assets than you had at the beginning of the relationship.
This is also an opportunity to have these kinds of significant financial discussions and flesh out what it is that you should do in the event of a tragedy or if the relationship ends.
It’s often difficult to get into specifics unless there’s a pressing legal document that requires you to do so. It could be time to decide that you will not be financially dependent upon each other as well.
If that’s the case, you can list it in the agreement and make things very simple in the event of a separation.
It’s wise to contact a lawyer if you plan to draw up a cohabitation agreement. This is simply because it’s easy to make small mistakes with big consequences when you’re working on legal documents.
There may also be certain things to keep in mind for your particular situation and set of assets that a lawyer could help you out with. Further, they can make sure that you make the document official in just the way that the law requires.
Looking to Expand Your Estate?
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