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 later and people still seem to have a lot of 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 time period does not automatically make your common law. You could be common law at one year or five years, maybe never.

The not so common knowledge about Common Law relationships and their Real Estate after a separation

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

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

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

The family law act defines a “Common Law Relationship” of 2 partners that have continuously lived not less than 3 years together, or not less than 1 year if they have a child either by birth or adoption.

Common Law In Canada And Peoples Rights

Common Law partners do not have a set of 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 which is; 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 length of time you cohabitated.

The term used for the home shared with your common law partner is called 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 a great deal of money in the home renovating, or paying bills for years assuming they had rights to the home as matrimonial couples do, but they were not on the title of the home and did not have written agreements.

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

My realtor advise for 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 important 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 and include rules allowing co-owner(s) to seek compensation by another co-owner.

6) Dispute resolution: for example, mediation or arbitration as a way 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’s 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 as mentioned in the co-ownership agreement but includes personal subjects such as spousal support and property rights.

It states how property is to be owned and/or 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 that you have no rights to the person’s pension plan, RRSPs, or the home that they own.

My realtor advise 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 along the process!

Resulting in you becoming inclined to make an application 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 the new purchaser of your home which will cost you!

If one common-law spouse does kick out the other, the “kicked-out” spouse should be in a position to secure alternative accommodations. The non-owning partner who may be in a less financially advantageous position than you are could apply for spousal support and in turn be rewarded spousal payments and if you don’t pay those payments; may result in a lien against your personal 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 greater hardships!

Common-Law In Canada

The Family Law Act says that the legal and moral obligations of couples who are in a relationship are like that of a marriage. Such relationships are called common-law relationships. Do keep in mind that this is a very basic definition that is in no way static.

If you want to find out if you are common law or not, you will need a legal opinion letter from a lawyer. Assuming there is nothing extremely complex about your situation, we can do a common law legal opinion letter for $150. This will mean that a lawyer says if they think you are common law or not.

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

Getting Legal Advice and Custody and Control

The stakes are high in such a situation. By hiring a lawyer you reduce the chances of messing up an extremely important decision of your life. You don’t want to lose your children and assets, so it’s important to take family law seriously.

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 together and you’ve been living for less than 2 years together.

If you fall into either one of these categories, you might be recognized as a spouse. This means that 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 be considered common law much sooner.

Are you Considered Common Law In Canada?

A person is a spouse for the purposes of the act. This is normally true if the person is married to another person, has lived with another person in a marriage-like relationship, and has done so for a continuous period of at least 2 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, as evidence of separation, communication by one spouse to the other spouse.

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 on the province.

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

Nova Scotia: In order 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 at protecting their rights, they 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 be living together for a minimum of 3 years, and even then, the province has no registration for such couples.

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

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

Common-Law Partnerships and Long Term Relationships

The basic 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.

For married spouses, there is a requirement for a marriage ceremony to be performed. This must be done by someone with the legal power to marry them. There must also be signatures of witnesses and a marriage certificate.

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

If you have an immigration case that is complicated by a common law issue, please contact us. We have both family and immigration lawyers.

Living Common-Law and Getting Legal Advice From A Top Lawyer

Separation is painful, be it from a partner of marriage or a common-law relationship. Canadian law is very specific on 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 done and agree to terms between the two of you. This means you don’t have to wait to see how a judge will rule.

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

The final decision is of course, either taken 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 deal with the matter between the two parties.

Do You Require A Lawyer For Separation?

The government has taken steps to simplify the process of getting a separation. But 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 normally never make. It also hinders your ability to make unbiased and practical decisions that might have a long-term effect on your life.

Are you considered common law in Canada? Then 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 via the live chat function in the bottom right of the screen.

Author:

Ilona Yehia- Sales Representative

RE/MAX Millennium Real Estate

Direct/Cell: 647-330-1717

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