Understanding Canada’s Common Law Rules and Human Rights

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Understanding Canada’s Common Law Rules and Human Rights

If you’re a believer of love without marriage, you may eventually tread the nebulous legal landscape of common law unions. The following guide will help you understand your rights and obligations under the law, under the advice from the top legal professionals in the field.

Common-Law Unions Across Canada

The qualifications for common law unions are hard to define and vary from province to province. As one justice points out, the term “common law” is more of a vernacular one in Ontario, with no official registration process to speak of. Generally, a union is considered “common law” if the two spouses have lived together in a conjugal relationship for three or more years, or one year, if the spouses in question have a child.

Ontario law defines common law differently, depending on which legal right is at issue.

Alimony

In Ontario law, common law partners may be considered “spouses” for the purposes of alimony payment, meaning that living with someone under a common law union may incur an obligation to pay alimony, even if the partners are not married. Common-law partners are considered “spouses” for alimony purposes if they have cohabited for three years, or if they live in a permanent relationship and have a child together. This cohabitation must be continuous – which means that couples who have broken up and later resumed cohabitation may not necessarily qualify for alimony rights.

Partners who do meet these requirements are treated as married spouses for alimony purposes, with the same alimony rights and obligations as that of a married couple. The amount and length of alimony payments depends on a number of factors, including each spouse’s respective income, assets, age, and health – a comprehensive guideline which can be found here.

Child Support and Custody

Under Ontario law, the rights and obligations regarding child custody and child support are the same for both married couples and those in common-law unions. The parent with full custody of the child is entitled to child support payments from the other parent for all dependent children under the age of 18.

The presence of children within a union can drastically affect the way a common law relationship is viewed in the eyes of the law, as cohabiting couples with a child are considered common law many years before their childless counterparts.

Property Rights

Unlike a married couple, common law partners have no property rights in regards to each other’s estates; if one partner dies without a will, the other would be treated as a stranger in the eyes of the law. In certain circumstances, the bereaved partner may be able to seek dependent’s relief – essentially a form of spousal support from an estate.

Likewise, common law partners in Ontario have no right to seek a division of assets if the union dissolves. Barring a cohabitation agreement (or some similar legal agreement), each partner keeps only what is in his or her name. Joint property is shared equally and, if necessary, sold to divide the proceeds. Partners unhappy with this result generally have two options: either file claim for unjust enrichment (if one party was enriched by their partner’s effort or finances, or suffered deprivation in time, money, or prospects because of the union); or file for a constructive trust.

Understanding Your Rights as a Common Law Couple

Making a claim for unjust enrichment and constructive trusts are costly and complicated affairs.

Galbraith Family Law lawyers are trained in Collaborative Practice, and we have been named the top firm by the Barrie Examiner multiple times. Our legal insights have also been featured in the Globe and Mail, as well as Lawyers Weekly.

Click here to contact us, or to schedule a consultation. Or you can call our office at 705-727-4242 (Barrie) or 289-319-0634 (Newmarket).

About 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.