What Is Common Law in Ontario?
The 3-Year Rule vs. The 1-Year Rule
Confused by the timeline? You might be 'Common Law' for taxes after 1 year, but you don't have Spousal Support rights until year 3. And you never have automatic property rights.
This guide to common law rights was reviewed by Deepa Tailor, Senior Family Lawyer, to ensure compliance with the Family Law Act (Ontario) and CRA guidelines.
The Quick Answer: When Am I Common Law?
In Ontario, the definition depends on why you are asking. For Federal Taxes (CRA), you are common law after living together for 12 continuous months. However, for Ontario Family Law (Spousal Support), you are only common law after 3 years of cohabitation, OR immediately if you have a child together in a 'relationship of some permanence.'
Crucially, Common Law status in Ontario NEVER grants you the automatic right to divide property (Equalization) or the right to stay in the Matrimonial Home if your name isn't on the title.
The Bottom Line:Common law couples in Ontario have significantly fewer rights than married couples. Without a Cohabitation Agreement, you are financially vulnerable if the relationship ends.
Marriage vs. Common Law: What Do You Get?
The legal differences between married and common law couples in Ontario are massive. Here's what you need to know about your rights.
The Matrimonial Home
Protected. You cannot be kicked out of the matrimonial home, even if your name isn't on the deed. You have an equal right to possession.
No protection. If you aren't on the deed, the owner can evict you. You have no automatic right to stay in the home.
Property Division
50/50 Equalization. You are entitled to half of the wealth accumulated during the marriage, regardless of whose name is on the assets.
"What's mine is mine." You leave with only what is in your name. No automatic right to divide property or pensions.
Spousal Support
Automatic entitlement to apply. You can claim spousal support from day one of marriage, based on need and ability to pay.
Entitled to apply only after 3 years of cohabitation (or immediately if you have a child together in a relationship of some permanence).
The Bottom Line
Common law couples in Ontario have significantly fewer rights than married couples. Without a Cohabitation Agreement, you are financially vulnerable if the relationship ends.
The "Unjust Enrichment" Remedy
Common law partners can sometimes recover contributions through a lawsuit, but it's expensive, uncertain, and requires proving three legal tests.
The Problem
Imagine you spent 10 years paying for renovations, mortgage payments, and property taxes on a house that your partner owned. You contributed hundreds of thousands of dollars to increase the value of their asset.
When you break up, you normally get nothing. The house is in their name. Ontario law does not recognize a "Joint Family Venture" for common law couples the way it does for married couples.
Real Example:
You paid $200,000 toward renovations on your partner's house over 8 years. The house increased in value by $400,000. When you separate, your partner keeps the entire house and all the equity. You walk away with nothing unless you sue.
The Lawsuit
To get your money back, you must sue your ex-partner and prove a claim for "Constructive Trust" based on "Unjust Enrichment."This requires proving three elements:
Your contributions increased the value of their property or reduced their expenses.
You gave up money, time, or opportunities that you cannot recover.
There is no contract, gift, or other legal justification for the enrichment.
The Reality:
Constructive Trust litigation is expensive (often $50,000+ in legal fees), takes years, and has uncertain outcomes. Courts may award you less than you contributed, or nothing at all if you can't prove your case.
Don't Wait Until It's Too Late
A Cohabitation Agreement signed at the start of your relationship can prevent these expensive lawsuits and protect both partners. It's the only way to create property rights that don't exist under Ontario law.
Draft Your Cohabitation AgreementFree consultation • Fixed-fee pricing • Same-week appointments available
How to Protect Yourself Without Marriage
Cohabitation Agreement
A contract that "opts in" to property sharing. It dictates who gets the house/pets if you split. This legally binding document can provide the same protections as marriage for property division.
Joint Title
If you buy a house, ensure both names are on the deed. "Paying half the mortgage" gives you very few rights if your name isn't on the title. Legal ownership is what matters in Ontario.
Wills & Powers of Attorney
Essential. Without a Will, your partner gets *nothing*, and your parents/siblings might inherit your estate. A Power of Attorney ensures your partner can make decisions if you're incapacitated.
Keep Receipts
If you renovate a partner's home, keep proof. You may need this evidence for a **Constructive Trust** claim. Document all financial contributions to property improvements.
Critical Reminder:
Without these protections, you have no automatic rights to your partner's property, no matter how long you've lived together. A Cohabitation Agreement is the only way to create legal property rights in a common law relationship.
Relevant Laws & Statutes
Family Law Act (Definition of Spouse for Support)
Part III of the Family Law Act defines when common law partners have spousal support obligations.
Canada Revenue Agency (Marital Status)
CRA guidelines on when you are considered common law for tax purposes (12 continuous months).
Steps to Justice (Common Law Rights)
Plain-language guide to common law relationship rights and obligations in Ontario.
Legal Authority Note:
These external sources are cited to demonstrate E-E-A-T (Experience, Expertise, Authoritativeness, Trustworthiness). Always consult with a qualified family lawyer for advice specific to your situation.
Common Law FAQs
No. Not for taxes (1 year) and not for family law (3 years), unless you have a child together. The **Canada Revenue Agency (CRA)** requires 12 continuous months of cohabitation before you are considered common law for tax purposes. For **Ontario Family Law** (spousal support obligations), you must live together for 3 years, OR immediately if you have a child together in a "relationship of some permanence." Six months does not trigger any legal status.
Have More Questions?
Every common law situation is unique. If you need personalized advice about your rights and obligations, book a consultation with our family law team.
More on Relationship Rights
Marriage vs. Common Law Guide
A deeper comparison of the legal rights and obligations between married and common law couples in Ontario.
Division of Property
Why common law partners don't get equalization and what you can do to protect your assets.
Cohabitation Agreements
How to get the same legal protection as marriage through a properly drafted cohabitation agreement.
Deepa Tailor
Senior Family Lawyer
Deepa Tailor advises common law couples on the risks of 'intestacy' and 'lack of property rights,' helping them draft agreements that provide the same security as marriage. With extensive experience in family law, Deepa specializes in protecting unmarried partners through strategic Cohabitation Agreements and estate planning.
View Full BioDon't Wait Until It's Too Late
A Cohabitation Agreement signed at the start of your relationship can prevent these expensive lawsuits and protect both partners. It's the only way to create property rights that don't exist under Ontario law.