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 the 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:

1. Division of Property

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”. For more information, visit our page about Divorce in Canada who gets what.

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.

2. Child Custody

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.

3. 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.

Questions About Common Law Separation

What Are My Rights in a Common Law Relationship?

If you are cohabiting with someone without being legally married, it is
important to understand your rights and obligations upon common law
separation.

Child Custody and Child Support – Following the breakdown of
common law marriage in Canada, rights and obligations with respect
to children are the same or consistent with rights and obligations with
respect to children of separated legally married couples.

Common-Law Rights To Property – The issue of property is where the rights and obligations of separated common-law couples and separated legally married couples diverge the most.

A separated common-law spouse is not entitled to pursue a property
claim under provincial legislation as a separated legally married
spouse would be. However, the separated common-law spouse may
still have property rights under the common (or judge-made) law.

For example, if you have been living in a property owned by your
common-law spouse, you may be able to advance trust claims against
their interest in that property. The strength of these claims will depend
on factors including the length of cohabitation, the contributions to the
asset and/or simply the facts of your case. It is important to consult
with a professional to understand this involved area of the law.

Common-Law Rights to Spousal Support – Rights and obligations with respect to spousal support following the end of a common-law relationship are addressed below.

Can You Get Spousal Support For Common Law Separation?

If a common-law spouse meets the requirements of the applicable provincial legislation, which could be a minimum period of cohabitation or having a child with the other common Jaw spouse, they would be entitled to seek spousal support. The strength of a claim for spousal support would be
dependent on factors including the length of cohabitation, the income
differential between the common-law spouses and whether there are
children. You should speak with a lawyer in your area to understand what
spousal support rights and obligations may apply to you.

Do You Need A Separation Agreement For Common Law?

Just as separated legally married couples often negotiate Separation
Agreements to resolve the issues arising from the breakdown of their
marriage as an alternative to proceeding to court, separated common law
couples do likewise. It is important to resolve in writing issues flowing from
a common-law separation so that both parties’ rights and obligations are
determined for the present and the future.

In summary, common law separation in Canada mirrors legally married separation for issues related to children. Where the two types of marriage differ the most is with respect to the issue of property. Get a free divorce lawyer consultation and talk with a professional who can provide answers to your common-law questions and provide you with assistance with your common-law separation.

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