Common Law Separation in Canada
A common law relationship is defined as two people who live together in a committed “marriage-like” relationship. According to recent Canadian census, common law relationships are quickly on the rise in our country. Despite the spike in this type of relationship, the rights of people living together outside of a marriage are still quite misunderstood. In fact, many people incorrectly believe that a common law couple is entitled to the same rights as a married couple, but this is most often not true. The exact laws of a common law marriage, and even the criteria needed to qualify as one, vary by province or territory across Canada.
Does Your Relationship Qualify as Common law?
To be considered in a “common law marriage”, a couple must live together for a specific period of time as outlined by the provincial legislation of they province they reside in.
The following table breaks out the different criteria for each Canadian province:
|Province/Territory||Criteria to Qualify for Common-Law Spouse|
|Alberta||Alberta does not have common law marriage. Instead they have created a category of relationship known as adult interdependent partner. An adult interdependent partner is someone living in a relationship of interdependence for a period of at least 3 years, or a relationship of some permanence if there is a child. You can also become an adult interdependent partner by entering into a written adult interdependent partner agreement.|
|British Columbia||You must cohabit for 2 years in a marriage-like relationship.|
|Manitoba||You must cohabit for 3 years or for one year if you have a child together.|
|New Brunswick||You must cohabit continuously in a family relationship for 3 years and one person must be substantially dependant on the other for support or, live together for one year and have a child together.|
|Newfoundland||You must cohabit for 1 year and have a child together.|
|Nova Scotia||You must cohabit for 2 years.|
|Ontario||You must cohabit for 3 years, or have a child and a relationship of some permanence.|
|P.E.I and N.W.T||You must cohabit for a period of at least two years, or have cohabited in a relationship of some permanence and together you are the natural or adoptive parents of a child.|
|Quebec||Québec, unlike the other provinces has a Civil Code, and it has never recognized common-law partnership as a kind of marriage. In Quebec, common law partners are known as “de facto” partners. Many laws in Québec explicitly apply to “de facto partners” similar to that of spouses. Currently there is no clear timeline for becoming “de facto” partners.|
|Saskatchewan||You must cohabit continuously for a period of not less than 24 months.|
|Yukon||You must cohabit in a relationship of some permanence.|
Common Law Separation: Basic Canadian Law
The basic laws when a common law couples separates are as follows:
Each person gets to keep what belongs to them and each person is responsible for the payment of their own debts. If an asset is in both names, then the value of that asset is to be equally divided and the couple can decide how to complete this division. It can be handled by one partner “buying” the other out, or the asset can be sold with the proceeds of sale being equally divided. In the event that these laws result in an unfair division, then a partner will need to make a claim to the courts citing “unjust enrichment”.
Unjust enrichment: This is when one person unfairly benefits at another’s expense. If unjust enrichment is successfully proven to the courts then the party that was unjustly enriched will be ordered to make reasonable restitution of the property, services or benefits that they unfairly received and retained.
Laws regarding child custody, access and support are the same in Canada regardless of whether or not a child’s parents were legally married. For the full details on this very important topic please visit our child custody page.
Seek Legal Advice
Since the laws surrounding separation in common law relationship can be vague, and vary depending on the province you reside in and whether the issues being discussed are covered by provincial or federal law, the best way to ensure you are getting the most accurate advice is to retain legal representation. A lawyer that specializes in family law, and specifically common law spouses, will be able to properly answer your questions, address your concerns and ensure that all of your rights are properly protected.
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