Plan Ahead to Protect Your Partnership
A Guide to Common-Law Unions in Canada
Last Updated: May 30, 2024
Written by
Key Takeaways:
- Common-law relationships are recognized in Canada but don’t have equal rights to traditional marriages.
- Each province and territory has varying criteria for recognizing common-law relationships, which affects separations, inheritance rights, and more.
- Knowing your rights and having the correct documents prepared can protect you and your common-law partner for the future.
Table of Contents
- What is a common-law relationship?
- What is the difference between common-law and traditional marriage?
- Why do couples choose common-law over traditional marriage?
- When is a relationship considered common law?
- How do I establish my common-law relationship?
- What are your legal rights as a common-law couple?
- 1. Property division
- 2. Spousal support
- 3. Estate rights
- 4. Decision-making authority
- 5. Tax and government benefits
- 6. Childcare responsibilities
- Protect your rights and keep your documentation up to date
Being in a common-law relationship impacts crucial legal rights like inheritance, spousal support, and property division.
Unfortunately, many couples are unaware of the serious implications of their relationship status. Without a clear understanding of your legal rights, you could be left at a disadvantage when suddenly faced with separation, illness, or death. That’s why knowing the steps you need to protect your future as partners is essential.
Use this guide to navigate your rights as a common-law couple and learn which legal documents can prepare you for the future.
What is a common-law relationship?
The definition of common law varies by jurisdiction and use case. Generally, a common-law relationship is when two individuals live together for a set period of time, regardless of gender or orientation.
This relationship status is also referred to as a:
- Common-law partnership
- Marriage-like relationship
- Adult interdependent relationship
- De-facto relationship
- Domestic partnership
- Spousal relationship
- Common-law union
- Cohabitation
Some definitions address a conjugal (sexual) relationship, whereas others do not. In this guide, however, we’ll examine how an intimate common-law relationship mirrors that of marriage and how couples can protect individual and partnership rights.
Even though this relationship is similar to a marriage, we should be clear it’s not one. The process of determining common-law relationships differs from traditional marriage, and your rights as a partner are not always equal to those of a married spouse.
What is the difference between common-law and traditional marriage?
In most cases, a common-law status is established over time (usually, after at least a year of living together). In contrast, people often set a date to be married and make their union legal. Some couples may choose to hold a formal ceremony, whether they are religious or not. You're able to get married as long as you complete the proper legal process.
Common-law relationships are recognized in Canada. However, there are more hurdles to jump over if you want to obtain the same property, inheritance, and support rights automatically granted to married couples.
Why do couples choose common-law over traditional marriage?
Many people choose common-law relationships simply because of personal preferences, such as:
- They’re not religious and don’t feel the need for a ceremony
- They believe that marriage is an outdated custom
- It has less legal hassle if the relationship ends
- There are more financial freedoms
- Weddings are expensive
In fact, Statistics Canada found that in 2022, nearly 25% of all couples in Canada were living in common-law relationships — the largest percentage in the G7.
When is a relationship considered common law?
Before jumping into your rights as a couple, you’ll need to know when your relationship is considered common law.
Like many Canadian laws, it’s defined differently by each province and the federal government. The federal government recognizes your relationship after 12 months of consecutively living together or, in some circumstances, if you have children with your cohabitating partner. This definition applies to federal income tax, pensions, and other benefits.
Take a look at your province or territory and how it determines common-law status. The requirements vary by jurisdiction.
| Provincial and Territorial Legislation | When you’re considered common-law | When the relationship is over |
| Alberta Family Property Act and Adult Interdependent Relationship Act |
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| British Columbia Family Law Act |
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| Manitoba Family Law Act and Vital Statistics Act |
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| New Brunswick Family Law Act |
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| Newfoundland and Labrador Family Law Act |
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| Northwest Territories Family Law Act |
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| Nova Scotia Parenting and Support Act |
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| Nunavut Family Law Act |
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| Ontario Family Law Act |
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| Prince Edward Island Family Law Act |
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| Quebec Interpretation Act |
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| Saskatchewan The Family Property Act |
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| Yukon The Family Property and Support Act |
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How do I establish my common-law relationship?
When filing for joint taxes, insurance benefits, or other applications with your partner, you may need to prove that a common-law relationship exists. To do this, organizing your paperwork and keeping records of your living arrangements is essential. These documents can include:
- A Cohabitation Agreement
- Proof of the same address (e.g., driver’s licenses or insurance policies)
- Paperwork showing joint ownership of real estate
- Shared utility accounts (e.g., gas, electric bills)
- Joint lease agreements
Some authorities may accept a Statutory Declaration stating your relationship status. However, you may need to complete specific government applications with their allotted forms. For example, for immigration applications, you’ll need to complete the IMM 5409 E: Statutory Declaration of Common-Law Union form to help prove your relationship status.
For more information about taxes and pensions, please contact a chartered professional accountant. For immigration matters, ask an attorney for legal guidance.
What are your legal rights as a common-law couple?
Now that you know how and when the government considers you common-law, it’s time to dig into your rights as a couple.
In certain areas, common-law couples in Canada have similar rights to married couples. While the federal government treats common-law couples similarly to married ones in some regards (e.g., for immigration, pension, or tax purposes), provincial governments have jurisdiction over several family matters, and rights vary. Specifically, we’ll talk about how this relationship status impacts property rights, access to benefits, and various family-related responsibilities.
1. Property division
Without a Cohabitation Agreement, common-law couples that separate must defer to the provincial or territorial laws that govern the division of shared property.
Property can be classified into two categories:
- Shared property refers to assets and debts that you and your partner own together. Usually, these are purchases or debts that you enter into together during the relationship.
- Separate properties are assets solely in your name. This can be property or debts accumulated before your relationship but can include individual purchases or debts made during the relationship.
Normally, under provincial legislation, you’re entitled to keep any property held solely in your name (i.e., separate property). However, any shared property will need to be divided between you and your partner. While some provinces and territories specify how shared property should be divided, others don’t have legal requirements for how shared property should be split.
For example, during a separation in Ontario, your partner may be entitled to part of your property if they made contributions towards it. Yet, they don’t automatically have that right.
In some provinces, a common-law partner may have a basis to claim a share of the property, even if they’re not on the title, if they can prove their financial contribution to the property. This typically involves going to court to establish a claim like unjust enrichment to gain compensation from their ex. This kind of claim is where a partner can make a case to receive some share of property they’ve made monetary contributions to during the relationship. However, these claims are often hard to prove.
Suppose you bought a home by yourself when you were single. You then enter a common-law relationship, but the property is kept only in your name. Your partner may contribute to costs like utilities, renovations, and the mortgage during that relationship. With their contribution, your partner may claim they have rights to a share of the value of the property if you separate.
These potential claims can create a lengthy and costly court process if you don’t have an agreement to protect you both.
Create a Cohabitation Agreement to detail your shared property and asset division. This way, if you separate, you’ll have more control over the terms of your split. This may also help avoid emotional disputes when dividing property during a break-up, as you’ll have already made important decisions at the beginning of your relationship.
2. Spousal support
Most jurisdictions allow a common-law partner to apply for spousal support during a separation. The only exception is Quebec, where the Civil Code doesn’t automatically recognize the obligation.
If a Cohabitation Agreement isn’t in place to outline financial support, you’ll need to follow any court decision regarding spousal support. How much you’ll need to pay your ex will depend on various factors (e.g., length of the relationship and household expenses). However, the deadline to apply varies between jurisdictions.
For example, in British Columbia, an ex-partner can apply for support within one year of separation. In the Yukon, there is no time limit to apply for couples who began cohabitation after 2021 under the amended Family Property and Support Act. Anyone who entered cohabitation before the amendment has a three-month time limit to apply for support.
Ultimately, having a Cohabitation Agreement allows you to determine both partners’ financial obligations during and after the relationship. For example, your agreement can divide responsibility for household expenses, detail joint bank accounts, and outline debts one partner is solely responsible for paying.
An agreement can go further by specifying how to divide these shared and separate assets and debts if the relationship ends. For instance, you may choose to abide by the law or specify support payments according to your own terms. Keep in mind that a court will only enforce these terms if both parties agree they are fair.
3. Estate rights
If someone dies without a Last Will and Testament (i.e., they die intestate), their common-law partner might not have the automatic right to inherit from their estate.
One form of inheritance that can benefit you as a couple is the right of survivorship. Assets in the name of two or more people automatically go to the surviving owners when one passes away. If you and your partner have joint names on property or other assets, then the right of survivorship determines that the property goes to your partner if you pass away.
Anything not in shared names will follow your jurisdiction's intestate laws. These laws tend to prioritize spouses first and then children to distribute the inheritance from an intestate estate. Typically, provinces recognize a common-law partner the same way they do a married spouse, but it’s important to remember that these laws vary by province and territory.
For example, if someone dies in Alberta, leaving a surviving interdependent partner but no descendants, the entirety of their estate goes to the surviving partner (Wills and Succession Act, p 3, s 60). However, it’s a different situation if you end your relationship before dying intestate. In this case, your partner will not have an automatic entitlement to your estate. If you still want your partner to inherit something from your estate after you've split, you must update your Will so that these instructions are clear.
Another example is Nova Scotia. Their intestate act will only recognize your partner if your relationship is registered. If you’re not registered but want your partner to inherit from your estate, you must name them in your Will as a beneficiary.
You may petition the court for your right to inherit from an intestate estate. This is done by determining your relationship status and dependence on your partner. Petitioning the court takes time and money. Plus, you’re not guaranteed to receive everything your partner may have wanted you to inherit.
Writing clear instructions in a Will can ensure that your property and assets are distributed according to your wishes when you pass away. If that means you want everything to go to your partner, they’ll receive their inheritance as per your request.
4. Decision-making authority
The need to make medical decisions can happen in an instant if an accident or illness leaves you incapacitated.
A Living Will, combined with a Medical Power of Attorney, gives someone the authority to consent to medical treatments on someone else’s behalf. It further documents details of your personal health care wishes in the event of an emergency. This can include treatment preferences, life support, and intervening measures so your healthcare proxy can advocate for them with your best interests in mind.
Medical professionals may recognize decision-making authority without documentation. However, you’ll save time and stress by creating this medical consent form in advance.
What’s more, some provinces don’t recognize common-law partners in their legislation covering health care or medical consent.
Newfoundland is an example where your partner may not be recognized as a decision-maker if you don’t name them in a Living Will and Medical Power of Attorney. Medical staff will resort to the hierarchy of consent under provincial legislation to determine authority for treatment (i.e., married spouse, children, parents, siblings, etc.).
Another example is Nunavut, as the territory doesn't have a personal directive act to outline consent. Instead, it has a Guardianship and Trusteeship Act, but common-law partners aren’t given priority to make medical decisions — anyone can apply to be a guardian. Instructions in writing are crucial for giving authority to your partner in this instance.
You can apply for guardianship of your partner’s long-term care if they don’t have a Living Will, but the process may take some time. Even if your province recognizes you and your partner to make medical decisions, having a Living Will can provide detailed requests to your partner, who can follow your medical preferences during your care.
A Power of Attorney (POA) allows you to appoint a representative beyond medical decisions. With this document, you can grant your partner legal authority to manage areas of your life on your behalf. Examples of the powers you can grant with this document include:
- Dealing with real estate transactions
- Employing professional care
- Filing and managing taxes
- Covering home expenses
- Managing investments
You and your partner can utilize a Power of Attorney to manage each other’s affairs seamlessly. This power is particularly helpful when your accounts, mortgage, business, etc., are not in joint names. A POA is also beneficial if you travel for work regularly or are absent for an extended period.
Creating all the necessary consent forms is essential to give you and your partner the ability to consent on each other’s behalf, like a married couple. As you complete your estate planning, a Living Will and Power of Attorney will ensure your wishes are followed through with care.
5. Tax and government benefits
Federal entities, such as the Canadian Revenue Agency (CRA), see common-law couples in the same light as married couples. As you file your income tax, you must provide your partner's details. The CRA determines benefits like GST/HST credit or Canada Child Benefits based on your combined income. If you don’t establish your relationship on your income taxes, it can result in a penalty and interest or even be considered fraud.
Provinces are in charge of programs like provincial tax credits, employment benefits, disability programs, and their own pensions. To find what your province has available for benefits, visit your government website. On the home page, they’ll have a detailed list of areas they cover, including health, employment, taxes, and more. From there, you can learn how your relationship status is factored into the government’s decisions on tax deductions and applications for benefits or programs.
For example, Ontario’s government site has a page just for taxes and benefits that provides access to information about every program available. Each government page provides a contact number if you need further assistance finding the right program. To ensure you follow all tax regulations and claim the benefits or credits you’re entitled to, seek personalized advice from a chartered professional account.
Having all your legal documents completed and up-to-date is important for your finances. For instance, a Cohabitation Agreement provides evidence of your relationship and responsibilities. So, you can use this document if you’re asked to provide proof of your relationship for benefits, insurance, or other programs. Your estate plan also helps coordinate financial matters such as naming beneficiaries in your Will or granting financial authority with a Power of Attorney.
6. Childcare responsibilities
Common-law status doesn’t change parental rights and responsibilities regarding child custody, visitation, or support. Although each province and territory has a Family Law Act to govern in their jurisdiction, child rights are consistent across Canada.
If you split up, you’ll need to discuss how to proceed with co-parenting. You can create a parenting plan to document your decisions. In some provinces, a parenting plan becomes legally binding when signed by one or both parents.
Talk to a lawyer for confirmation of your rights and responsibilities, and ask them to review your parenting plan so that it meets legal requirements in your jurisdiction. For example, British Columbia’s Family Law Act says the court determines custody and visitation based on several factors, including:
- The child’s health and emotional well-being
- The impact of family violence on the child’s safety
- The history of the child’s care
Additionally, if you have an agreement outlining spousal support, the court may determine a new arrangement to prioritize child support.
Other helpful documents for parents include:
- A Last Will and Testament: Use this document to appoint a legal guardian for your dependent children if you and your partner pass away.
- A Child Travel Consent: This form gives parental consent to a child travelling alone, with only one parent, or with another temporary guardian. It may even be mandatory to provide a consent form to border security, depending on your destination.
- A Child Medical Consent: Complete this important consent form if your child travels without both parents. It gives a caregiver authority to consent to medical treatments and identifies you as a parent and emergency contact.
Protect your rights and keep your documentation up to date
Your relationship will grow as time passes, and your lives may change. You might have children, buy a home together, or combine your assets and finances. Wherever life takes you, stay in control of your relationship by creating and updating the proper legal documents.
So, you can be at ease knowing you and your partner are protected and prepared for the future.
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