Are you considered common law in Canada? Many people contact the lawyers on our platform, wondering if they are considered common law. The Family Law Act was created in 2013. Fast-forward many years, and people still seem to have many doubts and misconceptions regarding common law.

Especially when it comes to the complicated common-law relationship. Some people think it’s a regular relationship; others think it’s a marriage. To answer your most important question, a period does not automatically make your common law. You could be common law at one year or five years, maybe never.

Domestic partnerships in Canada

As of 2019, 3 million people are cohabitating under common law status with an average length of 10 years or more.

Are you considered common law in Canada? You likely have complex questions with no quick answers. If you need legal advice, you can hire a lawyer to provide a legal opinion on your situation. Reach out to our lawyer platform.

Nearly 4 in 10 co-habituated with their spouse before marriage for an average of 4 years before tying the knot. Legislative family law has not updated mandates to match the increase in this social shift, which has caused more misinformation to spread quickly regarding property division among common-law partners.

Among the joint law partners I know myself, I realized that they didn’t have the “common” knowledge about their rights to their property if their relationship broke down!

The Family Law Act defines a “Common Law Relationship” as a relationship between two partners who have continuously lived together for not less than three years or not less than one year if they have a child by birth or adoption.

Common Law In Canada And Peoples’ Rights

Common Law partners do not have rights and legislation under the Family Law Act, as legally married couples do for property division. Under common law, there is a general rule of thumb: what’s hers is hers, and what’s his is his.

Under common law, you have to understand you don’t have the automatic right to share in the interest of your partner’s property if you are NOT on the title when you separate, regardless of the time you cohabitated.

The term for the home shared with your common-law partner is a “family home.” For married couples, it’s called the matrimonial home, and there are major differences!

There have been countless stories of common law partners who have invested much money in home renovation or paying bills for years, assuming they had rights to the home as matrimonial couples do. They were not on the home’s title and did not have written agreements.

Without protecting your financial interests legally, most common-law partners face economic hardship, surprises, and anger upon separating.

Unmarried couples looking to buy a home together

Both partners should jointly own the home by both being on title.

Have a Co-ownership agreement- This is a business-style contractual document drafted by a real estate lawyer when both parties are on title. This sets out essential decision-making processes that the partners will follow, including:

1) ownership structure

2) use of the property

3) financial & insurance arrangements like mortgage and property tax payments, sharing and paying operating expenses, funding major repairs and renovations, how co-owners will maintain needed insurance

4) Home operation and upkeep

5) What happens in the event of co-ownership negligence, misconduct, or breach of the agreement? Include rules allowing co-owner(s) to seek compensation from another co-owner.

6) Dispute resolution: mediation or arbitration to avoid lengthy and costly court cases.

7) Exit/entry provisions: how to leave the co-ownership arrangement, what to do in the event of the death of a co-owner and determining fair market value for a co-owner share.

Have a Co-habitation agreement

This is drafted by a family lawyer, preferably before the couple decides to move in together and when one partner is not on the title but wants to protect their financial contributions and interests in the home. This covers several topics mentioned in the co-ownership agreement but includes personal subjects such as spousal support and property rights.

It states how property will be owned and divided if the relationship ends. Without a cohabitation agreement, unmarried spouses have virtually no rights to the other person’s property on separation or death — which means you have no rights to the person’s pension plan, RRSPs, or the home they own.

Before a common-law partner decides to sell their family home

 Before contacting a realtor to list your home ensure personal matters have been dealt with and that your common-law partner has moved out before putting it on the market. Simply because your partner could refuse to leave the home and sabotage the sale!

This results in you becoming inclined to apply to the Landlord and Tenant Board to have the non-owning partner removed, and that takes time! Your closing date would then be delayed, and you would be in breach with your new home purchaser, which will cost you!

If one common-law spouse does kick out the other, the “kicked-out” spouse should be able to secure alternative accommodations. The non-owning partner, who may be less financially advantageous than you, could apply for spousal support and, in turn, be rewarded spousal payments. If you don’t pay those payments, it may result in a lien against your property or real estate.

Hope for the best but remember to prepare for the worst. Failing to protect your personal and financial interests with signed agreements can cost you and your family more hardships!

Living together as common law partners in Canada

The Family Law Act says that the legal and moral obligations of couples in a relationship are like those of a marriage. Such relationships are called common-law relationships. Remember that this is a very basic definition that is not static.

If you want to find out if you are in common law, you will need a legal opinion letter from a lawyer. Assuming nothing is extremely complex about your situation, we can do a typical law legal opinion letter for $150. This means that a lawyer asks if they think you are common law.

A top family lawyer can help you with the following:

• child support
• dealing with property
• legal advice regarding living common law
• cohabitation agreement
• custody and control

Canadian common law unions

The stakes are high in such a situation. Hiring a lawyer reduces the chances of messing up an extremely important decision in your life. You don’t want to lose your children and assets, so taking family law seriously is essential.

The Family Law Act says you might be common law if you meet at least one of the following criteria…

You two have been living together for a minimum of 2 years.

OR

You have a child and have lived together for less than two years.

If you fall into either one of these categories, you might be recognized as a spouse. This means you might become eligible for spousal support, debt and property division, child support, etc. But keep in mind that nothing is black and white in family law.

More important than the amount of time you lived together is how you lived together.

Did you hold yourself out to be like a married couple? We call this a marriage-like relationship. You might have considered common law much sooner.

Are you Considered Common Law In Canada?

A person is a spouse for the act. This usually is true if the person is married to another person, has lived with another person in a marriage-like relationship, and has done so continuously for at least two years.

A spouse includes a former spouse. A relationship between spouses begins on the earlier of the following:

1. The date on which they began to live together in a marriage-like relationship
2. The date of their marriage.

Spouses may be separated despite continuing to live in the same residence. This can lead to disputes about the date of separation, which is often very important in family law. The court may consider communication by one spouse to the other spouse as evidence of separation.

Common law cohabitation in Canada

They will look at this communication to examine the intention to separate permanently.

However, different Canadian provinces have different definitions of what may be considered a common-law relationship. There is no “common law in Canada”. It varies in the province.

Your legal rights as a common-law spouse can depend greatly on your location. Below are how a few different provinces look at common law:

Nova Scotia: To be legally recognized as a spouse, a couple must cohabitate for a minimum of 2 years. Even then, one cannot claim properties or spousal support. If one aims to protect one’s rights, one must look to the Nova Scotia Vital Statistics Act. That act states that a couple must be registered as being in a domestic relationship for them to have legal rights.

Alberta: We put together some legal information on Alberta.

Ontario: Common Law in Canada is more of a casual term. A couple needs to have lived together for a minimum of three years, and even then, the province does not register such couples.

Manitoba: It’s the same as above, except couples can register at the Vital Statistics Registry.

New Brunswick: You can see our article on common law in NB.

Non-marital relationships in Canada

The primary difference between these two relationships is the type of certificates needed. There is also a different level of proof involved in verifying the relationships. Of course, a married couple has a lot more legal benefits than an unmarried one.

A marriage ceremony must be performed for married spouses. This must be done by someone with the legal power to marry them. Witness signatures and a marriage certificate must also be present.

However, common-law relationships are sometimes misused for fraudulent purposes. This is done to hurry the application process for immigrants. Therefore, more legal proof is required to prove your relationship status.

If you have an immigration case complicated by a common law issue, please get in touch with us. We have both family and immigration lawyers.

Living Common Law and Getting Legal Advice From A Top Lawyer

Separation is painful, whether from a partner in marriage or a common-law relationship. Canadian law is very specific about the grounds for getting a divorce, but dealing with a common-law dispute is hard because the rules are often unclear.

Your best bet is often to get a separation agreement and agree to terms between you. This means you don’t have to wait to see how a judge will rule.

The many steps are the same in both processes. This includes terminating a relationship when one spouse indicates the end of the relationship.

Of course, the final decision is either made by the court based on the Family Law Act or decided between the parties in the separation agreement. Again, it’s much cheaper and often faster to resolve the matter between the two parties.

Unmarried couples in Canada

The government has taken steps to simplify the process of getting a separation. However, people still have difficulty navigating through a complex legal system. While it is possible to do everything on your own without the help of a lawyer, chances are you are bound to make many mistakes.

This is because you are under a lot of physical and emotional stress. This increases your chances of making mistakes you would typically never make. It also hinders your ability to make unbiased and practical decisions that might affect your life in the long term.