LIVING COMMON LAW IS NOT THE SAME AS MARRIAGE IN ONTARIO
The reality is that common law partners, those who live together without a marriage ceremony, do not have the same rights as married couples.
There is automatically an entitlement to spousal support in marriage and not in common-law relationships. In both, there is child support for any child that is born of the relationship. But spousal support only arises in common-law relationships after three years of cohabitation OR a relationship of some permanence if a child is born so as to cover a period of cohabitation less than three years. If there is no child OR no cohabitation for three years, there is no spousal support.
The courts apply the same Spousal Support Advisory Guidelines to both married and unmarried cohabitation situation subject to what is set out in the above paragraph. The longer the relationship and the bigger the difference in incomes between the spouses, the more likely there is that there will be spousal support. The presence of a child creates a higher level of support. The absence of children does affect the level of support. If the number of years of cohabitation plus the age of the recipient spouse at the date of separation adds up to 65, then there may be time unlimited support depending on the differential in incomes.
In fact, a relationship of over 20 years will most likely result in ongoing time unlimited support, if there is a significant differential in incomes and also depending on the retraining efforts of the recipient spouse and there are a number of other variables.
There is no automatic entitlement to share property, defined as almost any form of asset except an entitlement to exercise a professional license, for common law spouses.
Married spouses share assets based on the formula taking the assets at the end of the relationship minus the assets at the beginning of the relationship (unless it is the matrimonial home which receives special treatment and there may be more than one home) and also subject to certain special provisos that lead to a differing result as to property sharing. Subject to those factors, the net family property of each of the parties at the end of the marriage is then equalized. For example, short marriages of less 5 years may result in a different result as there may be a request to alter the normal sharing.
The figure at the end of the calculation for each married spouse is equalized by way of a money transfer or a property transfer or even a transfer of funds or assets over a period of time.
Common law spouses do not share property, i.e. pensions, bank accounts, RRSPs UNLESS they can provide proof of a common intention to share the asset (or to receive a cash payment in lieu) and a contribution by them to the assets of the other spouse by way of a benefit provided by them to the other spouse which could be money or money’s worth and no juristic reason (in effect a reason that would appear correct to a Judge) for them to have made the contribution except that they intended to receive a share. This is called an unjust enrichment claim which is put forward in various formats before the court.
This could apply to a piece of real estate, particularly the shared home, investments, spousal RRSP’s or a variety of other assets. It is not automatic, as it is for married spouses, and it is not an easy claim to win. It requires strict and cogent proof.
A cohabitation agreement can deprive a common-law spouse of support or property sharing even where they have made contributions, so extreme care must be taken in negotiating a cohabitation agreement. It needs to be remembered that a cohabitation agreement will, subject to any proviso in the cohabitation agreement stating otherwise, become a marriage contract upon the marriage of the common law spouses. So the negative aspects of a cohabitation agreement cannot be resolved simply by getting married. A cohabitation agreement, however, properly negotiated can grant you rights.
You need a lawyer to help you defend against being trapped by a one-sided cohabitation agreement and to negotiate a beneficial cohabitation agreement to protect you. A cohabitation agreement can cover property and support issues but it cannot cover child custody of any children of the relationship. It is very important that you receive independent legal advice and full financial disclosure before the signing of any cohabitation agreement. There are also requirements for financial disclosure on the negotiation of a cohabitation agreement, absent which, the agreement may be set aside by a Court.
THE ASSITANCE OF A LAWYER
It is important that you speak to a lawyer before negotiating a cohabitation agreement, most particularly before signing anything. You need to know what your rights are specific to your situation and you need to protect yourself. Contracts are very difficult to break and you can prejudice yourself for the rest of the relationship by your actions if you do not know your rights and what you are entitled to share or receive.