Share the Family Home When You Live Common Law

Published on 29 August 2022, 07:22:56 AM

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Living common law? Be careful what you agree to. Being a common law spouse affects your property rights if you separate.  

Common Law Relationship in Ontario

You and your husband have lived together forever. Are you common law spouses? It’s not only about how long you’ve been hanging out, although that does matter. Generally, you’re common law if you’ve been together three years or more, less if you have children. Your status could affect your taxes, employee or WCB (worker’s compensation) benefits, federal pension and more.

Six Signs You Live Common Law

  1. You share love, sex, comfort and companionship — in other words, a conjugal relationship.
  2. You have biological children or stand in place of a parent.
  3. You help each other the way a traditional family would.
  4. You act like a couple and tell others you are.
  5. The community sees you as a couple.
  6. You share or combine household expenses.

Separation and Your Family Home

So what happens when you separate? It’s cold out there. Unless you have legal title, you could be out on the street with only your luggage and the furniture or china you own. Unlike legally married couples, common law spouses don’t have an automatic right to homes they shared together. 

That Can’t Be Right

Right it is. It’s all about whose name is on the property title. Regardless of how long you live in a home together, you are only tenants in common. That makes you a renter — or, we hate to say it, squatter if you don’t share the mortgage — in  your own home. It’s not your automatic right to stay in the family home when you separate or to equalize your property like legally married couples do.    

Getting Your Share of the Family Home

Separation doesn’t have to lead to a loss of lifestyle. You could have a different outcome when you plan ahead. Instead of tenants in common, being joint tenants on the property title can preserve your right to have a share of the family home. 

Property Division, Parenting Time 

When common law couples separate, they must rely on the courts to decide how their property is divided. Unlike for legally married couples, Ontario has no specific laws for common law relationships. You do, however, have some rights in common, such as to child support, spousal support and to split CPP pension credits. You can make a cohabitation agreement while you live together or written separation agreement when you split on how to divide property, care for children or who will pay child and spousal support. 

Placing a Value on Common Law Contributions

If you had children together, lived in a fairly permanent relationship or contributed financially to the mortgage, property taxes or upkeep of the family home, you may be considered to be part of a joint family venture and receive a share of the home’s value or be allowed to stay. Alternatively, Ontario family court may compensate you financially, on a fee-for-service basis, like a nanny or cook. 

Deciding If Your Relationship is a Joint Venture

Your relationship could be a joint venture if it involves:

  • mutual effort, such as working together towards a common goal
  • economic integration, in which your finances, economic interests and economic well-being were joined
  • actual Intent, such as you planned to form a joint family venture, in word or action, and your relationship was “equivalent to (being) married”
  • family priority, in which one partner gave up their career for the families’ common financial future, leaving them in a worse position, and
  • reasonable or legitimate expectations that only one partner would benefit from the joint arrangement, which was what happened.

Proving a Constructive Trust

To make  your claim, you must prove:

  1. Your spouse was enriched by the arrangement.
  2. You were deprived or suffered a loss.
  3. There is no legal reason for your spouse to be enriched.

Filing a Constructive Trust Application

Typically, a constructive trust exists when one spouse was disadvantaged by being left out of the family home, despite investing time or money in it. For example, if you renovated the home using your own money or labour, but were left off the property title, you could argue your spouse benefitted at your expense. Assuming you didn’t make a cohabitation agreement, the court will require an accounting of your actions and receipts to show what your financial contributions were. Pursuing a former partner for a constructive trust remedy is complicated and best done through a family lawyer. We can file the application for you.

Apply to Ontario Family Court 

Axess Law’s Ontario family lawyers discuss your legal right to compensation for contributions you made to a common law relationship. Talk to a lawyer anywhere in Ontario via online video conference 7 days a week, day or evening. Make an appointment by dialing 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form. In person meetings with family lawyers are available at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.

Photo by Rajesh Balouria|Pixabay