Common-Law Relationship Lawyer in Mississauga

What common-law partners do have

Spousal support. Section 29 of the Family Law Act extends the definition of “spouse” for support purposes to unmarried partners who have cohabited continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. Once you are within that definition, the entitlement analysis and the Advisory Guidelines apply exactly as they would to a married spouse.

Everything to do with children. Decision-making responsibility, parenting time, and child support are identical regardless of whether the parents ever married. The Children’s Law Reform Act and the Guidelines do not distinguish.

What they do not have

Equalization of net family property. Part I of the Family Law Act applies only to married spouses. There is no automatic sharing of the increase in net worth during the relationship, however long it lasted.

Matrimonial home rights. The Part II possessory rights (equal right of possession, and the bar on selling or mortgaging without the other’s consent) do not apply. If the home is in your partner’s name alone, you have no automatic right to stay in it and no automatic right to a share of it.

Automatic inheritance. A common-law partner does not inherit on an intestacy under the Succession Law Reform Act. Without a will, a partner of thirty years can receive nothing while distant relatives inherit the estate. A dependant’s relief claim may be available, but it is litigation, not an entitlement.

Property claims: unjust enrichment and constructive trust

Where there is no statutory sharing, property claims have to be built on equitable principles. The leading authority is the Supreme Court of Canada’s decision in Kerr v. Baranow (2011).

A claim in unjust enrichment requires three elements: an enrichment of the defendant, a corresponding deprivation of the claimant, and the absence of any juristic reason for the enrichment. Where those are established, the remedy is usually monetary. A constructive trust over a specific property, a share of the house itself, is available only where a monetary award is inadequate and there is a link between the contribution and the property.

Kerr also recognised the joint family venture: where the parties effectively pooled their efforts in a common enterprise, a claimant may be entitled to a proportionate share of the accumulated wealth rather than a fee-for-services calculation. The court looks at mutual effort, economic integration, actual intent, and priority of the family.

All of this is harder, slower, and less predictable than equalization. It turns on evidence of what each party contributed and what they intended, often over decades, and much of that evidence is in nobody’s records.

The fix is a cohabitation agreement

Because the default position is silence, a cohabitation agreement does more work for unmarried partners than a marriage contract does for spouses. It can create the sharing regime the statute does not provide, or confirm that there will be none, either way, deliberately.

• Define what is separate property and what, if anything, is shared
• Record contributions to a home owned by one partner, and what they earn
• Address spousal support directly rather than waiting for the three-year threshold to arrive unnoticed
• Deal with what happens to the home on separation or on death
• Sit alongside wills and beneficiary designations, so the estate side matches