What Is a Common-law Spouse Entitled To in Ontario
The particular circumstances of your relationship will determine what a common law spouse is entitled to. Common law spouses are different from married couples in that they are not legally obligated to divide the property they have gained throughout their partnership, despite not being officially married. This is due to the Family Law Act's denial of any property rights to couples.
Common law couples do, however, still retain property rights and may be entitled to child or spousal maintenance. It's simply a bit more disorganized. So, let’s take a look at what you can be entitled to as a common-law spouse in Ontario.
When Does Ontario Consider You to Be Common Law?
If two people have been living together in a conjugal partnership for at least three years, they are regarded as common law partners in Ontario, Canada. They need to have lived together for only a year if they have a kid together through adoption or birth.
A “conjugal relationship” means more than just a sexual partnership. It is defined as two people who share a house, money, social circles, and an emotional bond in addition to having sex.
A common law relationship can be terminated at any time without the need for legal action. In contrast to married couples, ending a relationship does not require a legal divorce.
Ontario Common Law & Family Property
Under the Family Law Act (FLA), the economic gains accumulated during a marriage are shared equally. Once each spouse’s net family property is calculated, the spouse with the greater amount must transfer half of the difference to the other spouse. Spouses are free to sell assets other than the marital residence, and there is little court control.
However, only “spouses” as that term is defined under s.1 of FLA are covered by the FLA property regime. Therefore, an equalization of family property may only be advantageous to married spouses and non-cohabiting spouses.
Ownership is the foundation of property rights. Regardless of how long you lived together, the other partner does not automatically have a legal claim to assets or a house that is wholly in one spouse's name.
According to the law:
Property stays with the legal owner: Unless the other partner can demonstrate that they made a significant financial or other contribution, assets stay in the name of the person who bought them.
Constructive trust and unjust enrichment claims: In order to obtain compensation, a partner who made financial or unpaid labor contributions to a property (such as house improvements or mortgage payments) may file a constructive trust or unjust enrichment claim.
No automatic claim to half of the family home: After a divorce, common law partners do not have the same rights to the marital residence as married spouses. If one partner owns the house, the other might have to vacate unless they can demonstrate a financial stake.
Cohabitation agreements are highly advised for common-law couples to safeguard their financial interests in light of these distinctions.
Four conditions must be met by a spouse requesting a constructive trust order:
That they enriched the legal titleholder of the property in question by contributing money or labor
That the other spouse's enrichment resulted in a corresponding deprivation to the contributor
That there is no legal justification for the enrichment (such as a contract or gift)
There is a link between the contribution and the purchase or improvement of the property in question.
Courts will only grant monetary damages and not the property itself if the fourth criterion is not met. Lastly, property is awarded by courts in proportion to the amount contributed.
Ownership of the Marital House
The marital residence is handled differently than any other property. Both spouses have an equal right to possession of the marital residence, regardless of which spouse is the owner. Even a marriage contract signed before the marriage or cohabitation period will not be enforceable. The court has the authority to grant exclusive possession of the marital residence, regardless of who owns proprietary rights to it.
Since it is occasionally necessary to evict one spouse in order to prevent domestic violence or to mitigate the impact on children, the law preserves possessory rights in married households.
When deciding whether to grant exclusive possession, the court must take into account:
The children's best interests
All current directives pertaining to family property or support orders
Both partners' financial situation
Any written contract that the parties have
The presence of alternative accommodations that are appropriate
Whether a spouse has abused the children or the other spouse
Once more, unmarried cohabiting spouses are not entitled to the same possessory rights under Part II of the FLA, which exclusively applies to married spouses.
Cohabiting unmarried couples have several choices.
First, under section 29 of the FLA, cohabiting couples who have lived together for at least three years or who are in a rather permanent relationship and who are the biological or adoptive parents of a child may ask for the matrimonial residence as part of spousal support. An interim or final order pertaining to the marital residence may be issued by the court.
Second, partners who live together may be awarded a constructive trust in the shared home. This gives each partner an equitable ownership interest and an equal right to occupy the property, while stopping short of granting sole or exclusive possession to either party.
Third, A court can issue either a temporary or permanent restraining order against an individual when the applicant can demonstrate a reasonable fear for their personal safety. If the applicant has good reason to fear for their personal safety or the protection of any child under their care, they may be granted an interim or final restraining order.
Lastly, in some cases, bail requirements may prevent a cohabitant accused of a crime from living in the marital residence.
Common Law Relationships & Division of Assets
Only couples who meet the criteria listed in s. 1(1) regarding equalization of net family property are covered by the Family Law Act, R.S.O. 1990, c. F. 3:
The term "spouse" under this Act refers to either two individuals who are married to one another or have, in good faith, entered into a marriage that is voidable or void in order to assert any rights under this paragraph.
A marriage that is genuinely or perhaps polygamous is included in the definition of "spouse" if it was consummated in a country whose legal system acknowledges it as lawful.
What happens, therefore, to property that was obtained during a common law relationship when the parties part ways? Property is typically distributed according to who has legal title to it. In common law instances where there is a separation, neither an equalization payment nor a net family property calculation is considered.
You have alternatives if you were or are in a common law relationship and you believe you should be entitled to compensation or an interest in any contributions made to the purchase, upkeep, or preservation of property.
You can request reimbursement from your partner for any monetary or non-monetary contributions you have made to the property. You may file one of the following lawsuits if your spouse refuses to reimburse you:
Resulting trust
Constructive trust
Unjust enrichment
Resulting Trust
When one person purchases (or contributes to the purchase of) a piece of property while another person has legal title, a consequent trust is created. It would seem unjust to deny the person who provided all or part of the funding for the purchase a portion of the property. Consequently, the individual is treated as the holder of the beneficial interest, while the person holding legal title is regarded as acting in a trustee capacity on that individual’s behalf.
Interest equal to the donation is reimbursed upon separation. This implies that the spouse who paid for it may be granted complete ownership or joint ownership by the courts.
In a 1980 decision, the Supreme Court of Canada held that a resulting trust arises where the evidence shows a common intention drawn from the parties’ statements or conduct that beneficial ownership was not meant to rest solely with the spouse holding legal title, but was intended to be shared between them in some proportion.
Constructive Trust
Even if a person does not have legal title to a piece of property, they can still profit from it thanks to a constructive trust. This is because it is unjust to deny someone a portion of the property's value if they have contributed to it through labor, money, and other means.
Finding proof of a shared intention is not necessary to prove it. Only when the criteria set forth by the Supreme Court of Canada in 1980 are met would courts establish a constructive trust.
The test is based on the following unjust enrichment principles:
One spouse must be enriched
The other spouse must be deprived in proportion
There must be no legal or juristic justification for the enrichment.
You should be aware that giving something away or having a contract would be a legal justification.
The next stage is to demonstrate a causal relationship between the contribution and the property after the three requirements have been met. A constructive trust will arise if this relationship is established.
You should be aware that a contribution may be sufficient if it is related to the preservation, upkeep, or improvement of the property rather than the actual purchase of the property.
The amount of the interest must be commensurate with the contribution made by the spouse asserting a constructive trust. The shares will be unequal in cases where the contributions are not equal.
Unjust Enrichment
Finally, a straightforward claim for unjust enrichment may be made if everything else fails or if it is hard to establish a connection between the donation made and the property in question (often because the relationship is brief).
In this case, the courts will apply the three previously described elements of unjust enrichment in an attempt to correct an essentially unfair situation in which one person's efforts would benefit another. The value of their donation will be given to the person who was deprived. This is the amount that the benefitting party would have had to pay for the contributions provided; it is also known as quantum meruit.
Keep in mind that a common law spouse is not required to provide services to a partner; therefore, it is assumed that they will be paid.
Protect Yourself As a Common-law Couple in Ontario With GTA Divorce Lawyers
Common-law separations in Ontario can raise complex questions around property, support, and financial contributions. Getting clear legal guidance early can make a meaningful difference in protecting what you’ve built and avoiding costly disputes later.
GTA Divorce Lawyers are experienced Toronto divorce and family lawyers who understand the nuances of common-law relationships under Ontario law. The team provides practical, compassionate advice on separation agreements, spousal and child support, property claims, and constructive trust or unjust enrichment matters.
If you’re separating, planning ahead, or unsure about your legal position as a common-law spouse, speak with a lawyer who puts your interests first. Contact GTA Divorce Lawyers today to discuss your situation and take the next step with confidence.
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