Rights of Married Couples and Rights of Common Law Couples on Relationship Breakdown
Even though it may appear that being married or being in a common law relationship are identical, when separating in Ontario that is not the case. Back when the Country of Canada was being formed, the newly-established Federal and Provincial Governments divided decision-making powers among them. Certain decisions are made federally and are therefore the same across Canada, such as crimes and taxes, whereas other items are different across each Province, such as drinking age and healthcare.
This bit of history is extremely important in family law because decisions relating to marriage and divorce were granted to the Federal Government, while property and support decisions were granted to the Provincial Governments.
This means that the rights of married couples on divorce fall under the Federal Divorce Act, while the rights of common law couples on separation fall under the Provincial Family Law Act. This would not be an issue, except that the rights outlined in these two acts differ quite a bit, especially with regard to property rights for married couples as opposed to common law couples.
The Provincial Family Law Act, states that married couples are entitled to half of all property gained over the course of the relationship, regardless of whose name it is in. However, because the Provincial Act defines the term “spouse” in section 1 as two people who are married to one another, none of the property sections of the Family Law Act can be applied to a common law couple. This means that when common law spouses separate, property remains in whoever’s name it is in at the time of separation.
There are, of course, exceptions to both of these rules. Not all divorcing couples automatically share in half of the matrimonial property, and not all common law couples walk away with only those assets in their own name. As is often the case, the exceptions are complicated and lawyers are necessary.