Welcome to the Tailor Law Podcast, your trusted source for expert insights on family and divorce law in Ontario. I’m your host, and today we’re diving into a critical and often misunderstood topic: the legal complexities in Ontario common law separations.
Common law relationships are increasingly common, but when these relationships end, many people are caught off guard by how Ontario’s laws apply. If you’re in a common law relationship or facing a separation, this episode is for you. We’ll explore how the law defines common law partnerships, the rights and obligations of partners, and the challenges that come with dividing property and determining support. Let’s begin.
First, let’s clarify what it means to be in a common law relationship in Ontario. Under the Family Law Act, a couple is considered common law if they have cohabited continuously for at least three years or have a child together and are in a relationship of some permanence. This definition is crucial because it directly affects eligibility for spousal support and other legal claims.
But unlike married couples, common law partners do not have automatic rights to property division through equalization. This can lead to complex and sometimes contentious legal battles when a relationship ends. So, how do courts handle property division for common law couples?
This is where the concepts of resulting trusts, constructive trusts, and joint family ventures come into play. Let’s break these down.
A resulting trust typically arises when one partner contributes financially to the purchase of a property, but the property is in the other partner’s name. Unless the receiving partner can prove the contribution was intended as a gift, the law assumes that the contributing partner has an ownership interest.
Constructive trusts are more nuanced. They apply when one partner has contributed to the value of an asset—like a family home—through non-financial means, such as home renovations or childcare, and it would be unjust for the titled partner to retain all the benefits. The Supreme Court of Canada case Becker v. Pettkus laid the foundation for these claims, establishing that unjust enrichment must be proven for a constructive trust to apply.
Then there’s the concept of a joint family venture. This was solidified in the landmark Supreme Court case Kerr v. Baranow. A joint family venture occurs when both partners contribute to the family’s wealth and well-being, creating a shared economic life. If the relationship ends, and one partner is left at a disadvantage, they may have a valid claim to a share of assets, even without legal ownership. Courts look at four hallmarks to determine if a joint family venture exists: mutual effort, economic integration, actual intent, and the priority of the family.
Let’s consider a scenario. Imagine one partner leaves their career to raise children while the other focuses on building a business. Over time, the couple accumulates wealth, but only one partner’s name is on the property and investments. Upon separation, the stay-at-home partner may feel they deserve a share of the wealth they helped build. By demonstrating the hallmarks of a joint family venture, they could claim an interest in the property or business.
Another critical issue in common law separations is spousal support. Many assume that spousal support only applies to married couples, but that’s not the case in Ontario. Common law partners may be entitled to spousal support under the Family Law Act if they meet the cohabitation threshold. The Spousal Support Advisory Guidelines, or SSAGs, help determine the amount and duration of support, considering factors like the length of the relationship, financial need, and the recipient’s role in the family dynamic.
However, while common law partners can claim spousal support, they cannot make claims for property equalization—a right reserved for married couples. This creates a legal gap that can leave some common law partners financially vulnerable after separation. Legal claims in these cases often hinge on proving unjust enrichment or a joint family venture, both of which require substantial evidence and legal expertise.
Another emerging legal issue is the tort of family violence. In the landmark Ontario case Ahluwalia v. Ahluwalia, the court recognized a new tort specifically for family violence, allowing victims to claim damages for patterns of coercive and controlling behavior. This tort is significant for common law partners who have endured emotional, psychological, or physical abuse, as it provides a legal avenue for compensation beyond criminal proceedings.
Understanding these legal concepts is essential for anyone in a common law relationship. Proactive measures like cohabitation agreements can help outline financial responsibilities and expectations, protecting both partners in the event of separation. These agreements can address property ownership, spousal support, and even how to handle shared debts.
But if you’re already facing a separation, seeking legal advice is critical. At Tailor Law, we specialize in guiding clients through the complexities of family and divorce law. Our experienced team can help you navigate property claims, spousal support, and other legal challenges specific to common law separations.
If you need help understanding your rights or pursuing a legal claim, visit TailorLaw.com to book a consultation. We’re here to provide clear, compassionate, and effective legal support.
Thank you for joining me on this episode of the Tailor Law Podcast. I hope today’s discussion has given you valuable insight into the legal complexities of common law separations in Ontario. Remember, every situation is unique, and professional legal advice is key to protecting your interests.
Until next time, take care and stay informed.