Common Law Property Rights in Ontario: The Definitive Guide to Unjust Enrichment & Separation
Unlike married couples, common law partners have ZERO automatic right to property division. Here's what you need to know to protect yourself.
Too Busy to Read? The 30-Second Reality Check:
Property: Unlike married couples, common law partners have ZERO automatic right to property division or the Matrimonial Home.
Support: You are considered a "spouse" for support obligations after 3 years of living together (or immediately if you have a child).
The Remedy: To claim a share of assets, you must prove "Unjust Enrichment" or a "Joint Family Venture" in court.
What Does Common Law Really Mean?
The biggest misconception about common law relationships in Ontario is that time creates rights. It doesn't.
MYTH
"We lived together for 7 years, so I automatically get half of everything."
FACT
Length of cohabitation does NOT create property rights in Ontario. The Family Law Act excludes common law partners from automatic property division.
MYTH
"I helped pay the mortgage and renovate the house, so I own part of it."
FACT
If your name isn't on the deed, you have no automatic ownership. You must prove unjust enrichment in court to claim any share.
Key Takeaway
Legal definitions trump biology and time. If your name isn't on the deed, you are vulnerable. The law does not recognize "common law marriage" as equivalent to legal marriage when it comes to property rights.
The Power of a Cohabitation Agreement: Your Relationship Insurance
A cohabitation agreement is the only way to create certainty about property rights in a common law relationship. Think of it as relationship insurance—you hope you never need it, but you'll be grateful you have it.
What You Can Protect:
The Home
Clarify ownership, contribution expectations, and what happens upon separation.
Inheritance
Protect family wealth and assets received from parents or grandparents.
Business Assets
Shield your company from claims based on indirect contributions.
Investments & Savings
Define how joint and separate accounts will be treated.
Spousal Support
Set clear expectations about support obligations (or waive them entirely).
Debt Protection
Ensure you're not liable for your partner's debts upon separation.
Ready to Protect Your Assets?
Don't leave your financial future to chance. A properly drafted cohabitation agreement provides clarity, protection, and peace of mind.
No Agreement? Navigating Property Claims Through Unjust Enrichment
If you don't have a cohabitation agreement and your relationship ends, your only option is to prove unjust enrichment in court. This is a complex, expensive, and uncertain process.
The 3-Step Test for Unjust Enrichment:
Enrichment: They Got Richer
You must prove that your partner received a tangible benefit. This could be:
- Increased equity in a home you helped pay for or maintain
- Growth in a business you supported through unpaid labor or financial contributions
- Savings accumulated because you paid household expenses
Deprivation: You Lost Money or Time
You must show that you suffered a corresponding loss. Examples include:
- Direct financial contributions (mortgage payments, renovations, bills)
- Unpaid domestic labor (childcare, cooking, cleaning) that allowed your partner to work or build wealth
- Career sacrifices (turning down promotions, relocating, leaving the workforce)
No Juristic Reason: There Was No Contract
Finally, you must prove there was no legal reason for the enrichment. This means:
- No written agreement saying you wouldn't be compensated
- No evidence you intended your contributions as a gift
- No other legal basis (like a loan agreement) that explains the transfer of value
Understanding "Joint Family Venture"
If you can prove unjust enrichment, the court will then determine the remedy. The most powerful remedy is proving a "Joint Family Venture"—essentially arguing that your relationship functioned like a business partnership.
Think of it like a Business Partnership:
In Business:
- Partners pool resources
- Each contributes skills/labor
- Profits are shared
- Joint decision-making
In a Joint Family Venture:
- Partners pool income/assets
- Each contributes (financially or domestically)
- Wealth accumulated is shared
- Joint financial planning
If the court finds a Joint Family Venture existed, you may be entitled to a share of the accumulated wealth proportional to your contributions—not just compensation for specific expenses.
Legal Precedent: The Cases That Matter
Kerr v. Baranow (2011 SCC 10)
The Supreme Court of Canada established the modern framework for unjust enrichment claims and introduced the "Joint Family Venture" analysis. This landmark case confirmed that domestic contributions can create property rights—but only if you can prove all three elements of unjust enrichment.
Pettkus v. Becker (1980 SCC)
The foundational case that first recognized unjust enrichment as a remedy for common law partners. Ms. Becker worked on the family farm for 19 years without compensation. The Court awarded her a share of the property based on her contributions, establishing that unpaid domestic labor can create property rights.
Spousal Support & Children in Common Law Relationships
While property rights differ dramatically between married and common law couples, support obligations are more similar—with some critical distinctions.
Spousal Support
You are considered a "spouse" for support purposes if you:
- Lived together for 3+ years, OR
- Have a child together (regardless of cohabitation length)
Critical Difference: Common law partners have a 2-year limitation period to claim spousal support from the date of separation. Married spouses have no time limit.
Child Support & Custody
Good news: Child support and custody laws are identical for married and unmarried parents.
- Federal Child Support Guidelines apply equally
- Parenting arrangements follow the "best interests of the child" test
- Both parents have equal rights and responsibilities
Quick Reference: Common Law vs. Marriage
| Issue | Common Law | Marriage |
|---|---|---|
| Property Division | No automatic right. Must prove unjust enrichment. | Automatic 50/50 split of matrimonial property. |
| Matrimonial Home | No special protection. Name on deed controls. | Both spouses have equal right to possession. |
| Spousal Support | Available after 3 years (or with child). 2-year limitation period. | Available immediately. No limitation period. |
| Child Support | Identical to marriage | Identical to common law |
| Custody/Parenting | Identical to marriage | Identical to common law |
The Common Law Separation Checklist
Walking away from a common law relationship? Make sure you have proof of your contributions. This checklist will help you document everything you need to protect your rights.
What's Inside:
- Financial contribution tracking worksheet
- Domestic labor valuation guide
- Evidence collection checklist
- Timeline documentation template
Frequently Asked Questions
Get clear answers to the most common questions about common law property rights in Ontario.
Can my partner kick me out if I'm not on the lease or deed?
Yes. Unlike marriage, there is no automatic right to possession of the home for common law partners. If your name is not on the lease or deed, you have no legal right to remain in the property, regardless of how long you've lived there or how much you've contributed financially.
The only exception would be if you can obtain a court order based on an unjust enrichment claim, but this takes time and requires strong evidence. In the meantime, the legal owner can ask you to leave.
Is a verbal agreement binding for common law partners?
No. Per Family Law Act s. 55(1), cohabitation agreements must be:
- In writing
- Signed by both parties
- Witnessed by an independent third party
Verbal promises or handshake deals have no legal weight in Ontario family law. If you want to protect your rights, get it in writing.
What is the limitation period for property claims in common law separation?
The limitation period depends on the type of claim:
- Unjust Enrichment Claims: Generally 2 years from the date of separation.
- Real Property Interests: Up to 10 years if you're claiming an ownership interest in land or a home.
- Spousal Support: 2 years from the date of separation for common law partners.
Critical: It's essential to act quickly to preserve your rights. Once the limitation period expires, you lose your ability to make a claim—no matter how strong your case is.
Do common law partners have the same rights as married couples in Ontario?
No—and this is the most dangerous misconception. Here's the breakdown:
Property Rights: NO
Common law partners have ZERO automatic right to property division or the matrimonial home. You must prove unjust enrichment in court.
Spousal Support: SIMILAR (with limits)
You are considered a "spouse" for support obligations after 3 years of living together (or immediately if you have a child). However, you only have 2 years to claim support from the date of separation.
Child Support & Custody: YES
Child support and custody laws are identical for married and unmarried parents. Both parents have equal rights and responsibilities.
How much does it cost to prove unjust enrichment in court?
Unjust enrichment claims are among the most expensive and complex family law cases. Typical costs include:
- Legal Fees: $30,000 - $100,000+ depending on complexity and trial length
- Expert Witnesses: $5,000 - $20,000 for property valuations, business valuations, or forensic accountants
- Court Costs: Filing fees, motion costs, and potential cost awards
The Better Option: A properly drafted cohabitation agreement costs $2,000 - $5,000 and provides certainty. It's relationship insurance that pays for itself many times over.
Can I get a cohabitation agreement after we've already moved in together?
Yes—and you should. While it's ideal to have a cohabitation agreement before moving in together, you can create one at any point during your relationship.
Common triggers for creating an agreement mid-relationship include:
- One partner receives an inheritance
- Purchasing a home together
- Starting a business
- One partner leaves the workforce to care for children
The key is ensuring both parties receive independent legal advice and that the agreement is fair. Courts can set aside agreements that are unconscionable or signed under duress.
Don't Rely on "Fairness". Rely on the Law.
The family law system does not automatically protect common law partners. Proactive planning is the only way to protect your assets. If you are separating without an agreement, you need a strategy immediately.
What You Should Do Right Now:
If You're Still Together
Get a cohabitation agreement drafted immediately. Protect your assets before it's too late.
If You're Separating
Document all contributions immediately. The 2-year limitation period starts ticking from the date of separation.
If You've Already Separated
Act now. Every day that passes weakens your case and brings you closer to the limitation deadline.
Consultations available in-person or virtually across Ontario