Despite not being legally married, couples in Ontario should be aware of the distinct legal implications and rights that come with these relationships.
How are these two concepts legally different?
In Ontario, the concept of partnerships in a legal sense primarily revolves around common-law relationships, as the province does not recognize a separate category of 'domestic partnerships' .
The Family Law Act in Ontario is the main piece of legislation that defines key terms and outlines obligations and rights in common law partnerships.
According to the Act, a couple is considered to be in a common-law relationship if they are not married and have either cohabited continuously for at least three years or have a child together and are in a relationship of some permanence. This definition is crucial as it sets the criteria for various rights and obligations under the law.
What are the legal benefits and drawbacks of a common-law relationship in Ontario?
The legal landscape of common-law relationships in Ontario presents a unique mix of benefits and drawbacks compared to a traditional marriage.
Legal benefits that common-law partners may enjoy under the Family Law Act include being entitled to spousal support upon the breakdown of the relationship, being eligible for immigration sponsorship, tax benefits, and parental rights and obligations.
However, there are notable limitations in the rights of common-law partners compared to married couples. One significant difference is that Ontario courts are limited in their ability to make orders regarding property division, spousal support, and other related matters for common-law partners.
Courts, however, retain the authority to order the provision of necessities or to prevent a dependent partner from becoming a public charge. For example, if a common-law couple separates, the court may not have the authority to divide their property as it would in a marriage, but it can order one partner to provide financial support to the other.
Dividing property in the event of a separation
Regarding possession rights, the Family Law Act states that both common-law partners have an equal right to possession of the matrimonial home - which is defined as any property in which a person has an interest and that is, or was at the time of separation, ordinarily occupied by the person and their common-law partner.
However, if only one common-law partner has an interest in the matrimonial home, the other partner's right to possession is personal against the first partner and ends when they cease to be common-law partners, unless a separation agreement or court order states otherwise.
For example, if someone owns a house and their common-law partner moves in, the latter has a right to possession of the home during their relationship, but this right could end if they separate.
In addition, a common-law partner cannot sell or mortgage the matrimonial home without the consent of the other partner. This law is designed to prevent one partner from unilaterally making decisions that would impact the couple's living situation.
The court may also make orders regarding the matrimonial home, such as authorizing the sale of the home under certain conditions or providing for exclusive possession to one common-law partner.
This is particularly important in situations where there is a dispute between the common-law partners regarding the matrimonial home, especially in cases of separation.
Why cohabitation agreements are important
Given the differences between common-law partnerships and marriages, many common-law couples in Ontario opt for cohabitation agreements. These agreements can outline how property will be divided upon separation and address other legal aspects of the relationship, providing a level of certainty and protection similar to that of married couples.
However, the Ontario Family Law Act also allows for the setting aside of cohabitation contracts in certain circumstances.
For instance, if a provision for support or a waiver of the right to support a spouse in a cohabitation contract results in unconscionable circumstances, or if there is a default in the payment of support under the contract, the court may set aside this agreement.
To be legally valid in Ontario, a cohabitation agreement must be in writing, signed by both parties, and witnessed . It is important for each partner to obtain independent legal advice before signing the agreement to ensure that their rights and interests are adequately protected. To learn about these agreements in more detail, read JuriGo’s article on domestic contracts here.
Navigating spousal and child support in common-law relationships
One of the primary obligations outlined in the Ontario Family Law Act is the mutual responsibility of spouses to provide support for each other, based on their needs and respective abilities to pay. This obligation applies to both married and common-law spouses under the expanded definition of the legislation.
The Act emphasizes that each spouse must contribute to the other's well-being to the extent that they are capable, ensuring a safety net for spouses who may be financially disadvantaged following the dissolution of the relationship.
The Act also details the obligations of parents to support their children.
It mandates that every parent, regardless of their marital status, is responsible for supporting their child who is either a minor, enrolled in full-time education, or unable to withdraw from parental care due to illness, disability, or other valid reasons. It should be noted that this obligation does not extend to a child over sixteen years old who has chosen to leave parental control.
In addition, the law states that child support must be made in accordance with the child support guidelines, ensuring consistency and fairness in child support determinations.
However, there are exceptions where the court can deviate from these guidelines, such as when special provisions in a cohabitation agreement directly or indirectly benefit the child, or when applying the guidelines would result in an inequitable amount of child support given the provisions in the cohabitation contract.
When deviating from the guidelines, the court is required to record its reasons, ensuring transparency and accountability in these decisions.
In the absence of a cohabitation contract, how are support amounts determined?
The court plays a pivotal role in enforcing support obligations to ensure that dependents have multiple avenues to seek the support they are entitled to. It has the authority to order a person to provide support for their dependents and to determine the amount of such support.
Applications for support orders can be made by the dependent themselves or by the dependent’s parent. Additionally, certain government agencies can also make applications for support orders, especially in cases where public funds are being used for the dependent’s support.
| In determining the amount of support, especially for spouses and parents, the court considers various factors such as the assets and means of both parties, their ages, health, needs, and the standard of living during cohabitation . The court also takes into account the contribution of a spouse to the family, including child care and domestic services, and the impact of these contributions on the spouse’s earning capacity and career development. |
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In addition, support payments may be adjusted annually based on the Consumer Price Index to keep pace with inflation. So, if a common-law partner is receiving spousal support, the amount they receive may increase each year to reflect the rising cost of living.
As well, any order for support (like child or spousal support) is binding on the estate of the person who has the obligation to pay. This means that even after the death of the payer, their estate is responsible for continuing the support payments unless the order explicitly states otherwise.
The Family Law Act also allows for the modification of a support order if there's a significant change in circumstances. This is crucial for common law partners as their financial situations can change, needing a revision of support orders.
Furthermore, in cases where both child and spousal support are being considered, the law requires priority to be given to child support. This ensures that the needs of the child are placed above the financial support of a spouse.
It’s important to note that the obligation to provide spousal support exists regardless of the conduct of either spouse. However, the court may in extreme cases consider conduct that constitutes an obvious and gross repudiation of the relationship when determining the amount of support.
How do inheritances work in common-law partnerships?
Inheritance and estate planning are critical aspects for common-law partners, often presenting unique challenges compared to married couples. In Ontario, if a person dies without a will (referred to as intestate), the Succession Law Reform Act dictates how their estate is distributed.
While a legally married spouse is automatically entitled to a portion of the estate, this is not the case for common-law partners. Without a will, a common-law partner may not be entitled to any part of the deceased partner's estate, which can lead to unintended and often distressing outcomes.
That’s why it is crucial for common-law partners to engage in comprehensive estate planning. This includes drafting a will that clearly outlines how assets should be distributed upon death, ensuring that the surviving common-law partner is provided for as intended.
Additionally, considerations like power of attorney and living wills are important components of estate planning, allowing partners to make decisions on behalf of each other in case of incapacity.
Discuss the implications of a common-law partnership with a lawyer!
If you are in a common-law relationship, you should be aware of the legal rights associated with your partnership. Consulting with legal professionals and seeking guidance on drafting cohabitation agreements can help protect both partners and ensure a stable and legally protected relationship.
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