Ontario does not recognize common law marriage, so technically there is no "common law divorce" in this province. However, common law partners who separate face complex legal issues involving property division, spousal support, and parenting arrangements. Under the Ontario Family Law Act, s. 29, common law partners who have cohabited continuously for at least 3 years (or have a child together) qualify for spousal support but receive no automatic property rights. This means that unlike married couples who benefit from the 50/50 equalization of net family property, common law partners must prove their entitlement to shared assets through constructive trust or unjust enrichment claims established in Kerr v. Baranow, 2011 SCC 10.
Author: Antonio G. Jimenez, Esq. | Florida Bar No. 21022 | Covering Ontario divorce law
Key Facts: Common Law Separation in Ontario
| Factor | Married Couples | Common Law Partners |
|---|---|---|
| Property Division | Automatic 50/50 equalization | No automatic rights; prove through unjust enrichment |
| Spousal Support | Automatic eligibility | Requires 3 years cohabitation OR child together |
| Filing Fee | $669 (Superior Court) | $669 if court application needed |
| Limitation Period | 6 years (equalization) | 2 years general; 10 years for real property trust claims |
| Governing Statute | Family Law Act, Part I | Family Law Act, Part III (support only) |
| Parenting Arrangements | Best interests of child | Identical to married parents |
What Is Common Law Status in Ontario?
Common law status in Ontario means a couple has lived together in a conjugal relationship for a specified period without being legally married, with the threshold varying from 1 to 3 years depending on which law applies. Under the Ontario Family Law Act, s. 29, you become a common law spouse for support purposes after 3 continuous years of cohabitation, or immediately if you have a child together and are in a relationship of some permanence. For income tax purposes under the federal Income Tax Act, you qualify as common law after just 12 months of cohabitation or any duration if you have a child.
Ontario courts use the "Molodowich factors" to determine whether cohabitation exists in a conjugal relationship. These factors examine shared shelter arrangements, sexual and personal behavior, household services, social activities, economic support, and the intention of both parties. A court in Klimitz v. McBain, 2018 ONSC 2392 found that couples do not need to share a residence continuously; even intermittent cohabitation can establish common law status if other factors indicate a conjugal relationship. The Ontario Court of Appeal confirmed this principle, ruling that lack of a shared residence is not determinative of cohabitation.
The key distinction for common law separation in Ontario is that the Family Law Act, s. 1(1) defines "spouse" for property division purposes as only those who are legally married. This means the automatic equalization of net family property under Part I of the Family Law Act does not apply to common law couples, regardless of how long they lived together or how intertwined their finances became. This single legislative definition creates the most significant difference between married and common law separations in Ontario.
Property Rights for Common Law Partners
Common law partners in Ontario have no automatic right to divide property accumulated during the relationship, meaning that assets remain with whoever holds legal title regardless of how long the couple lived together or contributed to acquiring those assets. If your partner owns the family home solely in their name after 20 years of cohabitation, you have no statutory right to half its value under the Family Law Act. Furniture, vehicles, bank accounts, and investments belong to the person whose name appears on the title or account.
The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 established the legal framework for common law property claims through the doctrine of unjust enrichment. To succeed in an unjust enrichment claim, you must prove three elements: (1) the defendant was enriched; (2) you suffered a corresponding deprivation; and (3) there is no juristic reason (legal justification) for the enrichment. If all three elements are proven, you may receive either a monetary award or a constructive trust interest in specific property.
The "joint family venture" concept from Kerr v. Baranow provides a more comprehensive remedy for long-term common law relationships where both partners contributed to building shared wealth. Courts identify a joint family venture by examining four factors: mutual effort toward common goals, economic integration (shared bank accounts, joint credit), actual intent during the relationship, and prioritization of the family unit over individual interests. When a joint family venture exists, the remedy shifts from simple compensation for contributions to a proportionate share of the accumulated wealth using the "value survived" approach.
Monetary Award vs. Constructive Trust
Ontario courts in Martin v. Sansome, 2014 ONCA 14 refined the remedial framework for unjust enrichment claims. The court established a hierarchy: monetary damages are always the first remedy to consider, with constructive trust reserved for situations where monetary compensation is inappropriate or insufficient. A constructive trust may be awarded when there is a clear link between your contributions and the acquisition, preservation, maintenance, or improvement of specific property.
Typical monetary awards in Ontario unjust enrichment cases range from $50,000 to $500,000 depending on the length of relationship, nature of contributions, and value of accumulated assets. In Kerr v. Baranow itself, the Supreme Court awarded Ms. Kerr a $315,000 payment representing her share of the joint family venture accumulated over 25 years. The calculation uses a "value survived" approach: the court determines the total wealth accumulated during the relationship, then awards a proportionate share based on each partner's contributions.
Limitation Periods for Property Claims
The general limitation period for civil claims in Ontario is 2 years from the date you discovered (or should have discovered) your claim, typically around the separation date. However, the Ontario Court of Appeal in McConnell v. Huxtable, 2014 ONCA 86 ruled that claims seeking a remedial constructive trust against real property (land) have a 10-year limitation period under the Real Property Limitations Act. This means you have more time to pursue a claim to the family home than to bank accounts or investments.
Spousal Support Entitlement
Common law partners in Ontario can claim spousal support under Family Law Act, s. 29-34 if they meet specific cohabitation requirements: either 3 continuous years of living together in a conjugal relationship, or any duration if the couple has a child together and maintained a relationship of some permanence. The 3-year threshold is strictly applied; living together for 2 years and 11 months without children does not qualify you for spousal support under provincial law.
Once eligibility is established, Ontario courts determine spousal support entitlement based on three recognized grounds. Compensatory support applies when one partner suffered economic disadvantage due to roles adopted during the relationship, such as staying home to raise children or relocating repeatedly to support the other partner's career. Needs-based support focuses on preventing financial hardship where one partner cannot meet basic needs after separation. Contractual support applies when the parties signed a cohabitation agreement specifying support terms.
Calculating Support Amount and Duration
The Spousal Support Advisory Guidelines (SSAG) provide a framework for calculating support amounts and duration that courts apply equally to common law and married couples, substituting years of cohabitation for years of marriage. Under the "without child support" formula, monthly support typically ranges from 1.5% to 2% of the gross income difference between the partners for each year of cohabitation. For a 10-year relationship where one partner earns $100,000 and the other earns $40,000, the low-end monthly support would be approximately $900 and the high end approximately $1,200.
Duration under the SSAG ranges from 0.5 to 1.0 years per year of cohabitation. A 10-year common law relationship would result in support lasting 5 to 10 years. The "Rule of 65" applies when the years of cohabitation plus the recipient's age at separation equals or exceeds 65, resulting in indefinite support (no specified end date). For example, a 50-year-old partner separating after 15 years of cohabitation (50 + 15 = 65) qualifies for indefinite support. Relationships lasting 20 years or longer automatically qualify for indefinite support regardless of age.
The SSAG are advisory only in Ontario and are not legally binding like the Federal Child Support Guidelines. Judges maintain discretion to deviate from the guidelines when circumstances warrant, including exceptional hardship, disability, or significant changes in circumstances after separation.
Child Support and Parenting Arrangements
Child support rights and obligations are identical for common law and married parents in Ontario because support is the child's right, not dependent on the parents' marital status. Under the Federal Child Support Guidelines, the parent with less parenting time pays support to the other parent based on their gross income and the number of children. For example, an Ontario parent with gross annual income of $80,000 pays $722 monthly for one child, $1,141 for two children, or $1,476 for three children according to the 2026 Federal Child Support Tables.
Parenting arrangements for unmarried parents in Ontario are governed by the Children's Law Reform Act (CLRA), which adopted the same terminology as the 2021 amendments to the federal Divorce Act. "Custody" became "decision-making responsibility" and "access" became "parenting time" effective March 1, 2021. Ontario courts determine all parenting arrangements based exclusively on the best interests of the child, with primary consideration given to the child's physical, emotional, and psychological safety under Divorce Act, R.S.C. 1985, c. 3, s. 16.
The CLRA states that both mother and father are equally entitled to decision-making responsibility, with no automatic preference based on gender. Courts consider a comprehensive list of factors including each parent's ability to meet the child's needs, the child's existing relationships, stability of proposed living arrangements, and each parent's willingness to support the child's relationship with the other parent. Family violence receives particular attention under the 2021 amendments, including physical violence, coercive control, financial abuse, and psychological harm.
Cohabitation Agreements
A cohabitation agreement is a legally binding contract between common law partners that defines property rights, support obligations, and other matters both during the relationship and upon separation. Under Family Law Act, s. 55(1), a cohabitation agreement must be in writing, signed by both parties, and witnessed to be enforceable. Verbal agreements or informal understandings, even if both parties genuinely intended them, cannot be enforced in Ontario courts.
For maximum enforceability, both parties should provide complete financial disclosure before signing, including income, assets, debts, and liabilities. Each partner should obtain independent legal advice (ILA) from their own lawyer who can explain the rights being waived and consequences of the agreement. While courts have enforced agreements signed without ILA, the absence of independent advice increases the risk that a court may later set aside the agreement for unfairness or lack of informed consent.
Under Family Law Act, s. 56(4), a court may set aside a cohabitation agreement if: (1) a party failed to disclose significant assets, debts, or other liabilities; (2) a party did not understand the nature or consequences of the agreement; or (3) the agreement is unconscionable (shockingly unfair) at the time of enforcement. Agreements signed under pressure, threats, or emotional manipulation may also be invalidated on grounds of duress or coercion.
Cohabitation agreements cannot determine parenting arrangements for children because these matters must be decided according to the child's best interests at the time of any dispute, not years earlier when circumstances were different. If partners later marry, a properly drafted cohabitation agreement can automatically convert to a marriage contract, providing continuity of the agreed-upon terms.
Filing a Court Application
Common law partners who cannot reach agreement on support, property, or parenting arrangements may file a court application in the Ontario Superior Court of Justice (Family Court branch where available). The filing fee is $224 for the initial Application and $445 for subsequent documents such as the Affidavit for Divorce, totaling $669 for a complete filing. As of January 2026, these fees adjust every three years according to the Ontario Consumer Price Index. There are no filing fees in the Ontario Court of Justice for family proceedings.
Parties who cannot afford court fees may request a fee waiver certificate under the Ministry of the Attorney General's Fee Waiver Program. Eligibility depends on income level and the nature of the proceeding. Fee waiver certificates apply only to fees not yet paid; they do not provide refunds for previously paid amounts.
Starting October 14, 2025, Ontario implemented different online filing portals depending on location. Use the Ontario Courts Public Portal for matters in the Toronto region and the Justice Services Online Portal for matters outside Toronto. Court documents can also be submitted in person, by email, or by mail with payment by phone (credit card) or cheque.
Common Law Separation Timeline
| Stage | Typical Duration | Key Actions |
|---|---|---|
| Initial Separation | Week 1-4 | Establish separate residences; gather financial documents; consult lawyer |
| Negotiation | Month 1-6 | Exchange financial disclosure; negotiate support and property informally or through mediation |
| Court Application (if needed) | Month 2-4 | File Application; serve opposing party; await Response |
| Case Conference | Month 4-8 | First court appearance; identify issues; explore settlement |
| Settlement Conference | Month 8-14 | Detailed settlement negotiations with judge assistance |
| Trial (if needed) | Month 14-24+ | Full hearing on contested issues; evidence and testimony |
| Final Order | Varies | Court issues decision or parties finalize agreement |
Most common law separations in Ontario resolve through negotiation or mediation within 6-12 months, avoiding the need for trial. Cases involving significant property claims, business valuations, or parenting disputes may take 18-24 months or longer. Unjust enrichment claims involving joint family ventures often require expert evidence on property values and contributions, adding time and expense to the process.
Frequently Asked Questions
How long do you have to live together to be common law in Ontario?
Under Ontario's Family Law Act, s. 29, you must cohabit continuously for 3 years to qualify as common law for spousal support purposes, or be in a relationship of some permanence with a child together. For income tax purposes under federal law, the threshold is only 12 months of cohabitation. Property rights are not based on duration; common law partners never gain automatic property division rights regardless of how long they live together.
Can I claim half of my common law partner's property in Ontario?
Common law partners in Ontario have no automatic right to property division, unlike married spouses who benefit from 50/50 equalization under the Family Law Act. To claim a share of your partner's property, you must prove unjust enrichment under the Kerr v. Baranow framework, demonstrating that your partner was enriched, you suffered a corresponding deprivation, and no legal justification exists for your partner to retain the benefit. Successful claims typically result in 25-50% of specific assets, not automatic 50/50 division.
What is a common law partner entitled to in Ontario?
Common law partners who meet the 3-year cohabitation threshold or have a child together are entitled to claim spousal support based on need, compensation for economic disadvantage, or contractual terms in a cohabitation agreement. They have no automatic property entitlement but may pursue unjust enrichment claims for monetary awards or constructive trust interests in specific property. Parenting rights and child support obligations are identical to married parents, based on the child's best interests and Federal Child Support Guidelines.
Do common law partners have to pay support in Ontario?
Yes, common law partners who meet the eligibility requirements under Family Law Act, s. 29 (3 years cohabitation or child together) may be required to pay spousal support if they were the higher-earning partner and the recipient can establish entitlement based on need, compensatory grounds, or a cohabitation agreement. The Spousal Support Advisory Guidelines apply equally to common law and married couples, with duration typically ranging from 0.5 to 1.0 years per year of cohabitation.
How do I protect my assets from a common law partner in Ontario?
The most effective protection is a cohabitation agreement signed before or during the relationship that specifies how property will be divided upon separation. The agreement must be in writing, signed, and witnessed under Family Law Act, s. 55. Both parties should exchange complete financial disclosure and obtain independent legal advice. Keeping assets in your sole name is not sufficient protection if your partner can prove contributions that would support an unjust enrichment claim.
What is the difference between common law and married couples in Ontario?
The key differences are: (1) married couples have automatic 50/50 property equalization while common law partners have no automatic property rights; (2) married spouses automatically qualify for support while common law partners must meet the 3-year or child requirement; (3) married couples have 6 years to claim property equalization while common law partners have 2 years (or 10 years for real property trust claims); (4) married couples require a divorce to remarry while common law partners can simply separate. Parenting and child support rights are identical for both.
How long does spousal support last after a common law separation?
Under the Spousal Support Advisory Guidelines, duration ranges from 0.5 to 1.0 years per year of cohabitation. A 10-year common law relationship typically results in support lasting 5-10 years. The "Rule of 65" provides indefinite support when years of cohabitation plus the recipient's age equals 65 or more. Relationships lasting 20+ years automatically qualify for indefinite support. "Indefinite" means no end date is initially set, but support can still be varied or terminated if circumstances change significantly.
Can I claim my common law partner's pension in Ontario?
Common law partners cannot claim pension division under the Family Law Act because the property equalization provisions do not apply to unmarried couples. However, you may be able to include pension contributions as part of an unjust enrichment claim if you can demonstrate that your contributions to the relationship (financial or otherwise) enabled your partner to accumulate pension benefits. Federal pensions (CPP/QPP) allow credit splitting for common law partners who have cohabited for at least 12 continuous months.
What happens to the family home when common law partners separate in Ontario?
Unlike married couples, common law partners have no automatic right to the matrimonial home. The home belongs to whoever holds legal title. If only one partner is on title, the non-titled partner must prove entitlement through unjust enrichment or constructive trust claims under Kerr v. Baranow. If successful, remedies may include a monetary award or a share of the home's equity. Jointly titled property is divided according to ownership shares unless the parties agree otherwise or a court orders a different division based on contributions.
Do I need a lawyer for common law separation in Ontario?
While not legally required, consulting a family lawyer is strongly recommended for common law separations involving property claims, spousal support disputes, or parenting arrangements. Unjust enrichment claims are legally complex and require proving specific elements with evidence. A lawyer can assess the strength of your claim, help gather necessary evidence, negotiate settlements, and represent you in court if needed. Initial consultations typically cost $200-$500, with full representation ranging from $5,000-$25,000 for negotiated settlements to $25,000-$100,000 for contested litigation.
Conclusion
Common law separation in Ontario requires careful attention to property rights, support entitlement, and parenting arrangements that differ significantly from married couples' separations. Without automatic property division rights, common law partners must understand the unjust enrichment framework established in Kerr v. Baranow and the limitation periods that apply to different types of claims. Those who qualify for spousal support under the 3-year rule can expect the SSAG to guide amount and duration calculations. Protecting your interests through a cohabitation agreement before or during the relationship remains the most effective strategy for common law couples in Ontario.
For specific legal advice about your common law separation, consult with an Ontario family lawyer who can assess your unique circumstances and explain your options under current provincial law.