Cohabitation and Common Law Couples
What does it mean to cohabit?
To cohabit means “to live together in a conjugal relationship, whether it be within or outside of marriage.” In Ontario, this includes same sex couples.
To be considered a common law spouse in this province, you must either live together for 3 years or be in a relationship of some permanence where the parties are natural or adoptive parents of a child. It is important to note that you do not necessarily need continuous daily cohabitation to be considered a common law spouse (Campbell v Szoke, 45 R.F.L. (5th) 261 (Ont. C.A.)). You can have separate residences and still be considered a common law spouse.
Of the many differences between married couples and common law couples, the most pronounced is the statutory rights regarding property that are afforded to married couples but are withheld from common law spouses. Ontario’s Family Law Act does not extend property rights to common law spouses.
So then, what property rights do I have?
Although property rights are not extended to common law couples under the Family Law Act, common law couples do have remedies under the law of resulting trusts and constructive trusts. For a member of a common law couple to make a claim relating to property based on the law of trusts, they must be able to show the following three things:
- that the Defendant has been enriched;
- that they have suffered a related deprivation; and
- that there is an absence of a juristic reason for this enrichment.
So what does this mean? Lets take the example of Kelly and John. Let us assume that Kelly and John have lived together for 10 years. Kelly owns a home. Throughout their years together, John helps pay bills, takes out a loan and makes some of the mortgage payments, uses his own money to repair sections of the house, and contributes to the upkeep of the property. After 10 years the parties separate. Upon doing so, John brings a claim in the Ontario Superior Court of Justice for a monetary award because:
- Kelly’s property increased in valued over the past 10 years;
- John contributed extensively to that increase in value;
- the parties had no contract or agreement where John was required to contribute to the property.
Basically, John’s position is that it is just not fair for his contributions to go unrewarded. For John to succeed in his claim, John must show that Kelly has been “unjustly enriched”. According to the Supreme Court in Kerr v Baranow, to do so he must address the following factors:
- the extent to which Kelly and he exercised mutual efforts to work towards common goals;
- the degree of economic integration and interdependence between Kelly and him;
- any evidence of actual intent to integrate their finances; and
- proof that John suffered detriment as a result of making the family his priority in decision making.
In most cases, if John succeeds, a court is likely to award him money rather than place his name on title to the property.
So although common law spouses were neglected by the Provincial Legislature when it drafted the relevant provisions for property entitlement in the Family Law Act, the property rights of common law couples were addressed by the Supreme Court of Canada in Kerr v Baranow.
Spousal Support Obligations
Unlike property rights, entitlement to spousal support is extended to common-law couples in Ontario’s Family Law Act. For more information on spousal support see our other articles.
If you are entering into a common law relationship, it is always a good idea to speak to a Family Lawyer to help draft one for you. A cohabitation agreement is a binding domestic contract that sets out the terms of support and property rights in the event of a relationship breakdown. Part 4 of the Family Law Act, covers the provisions for domestic contracts that common law couples may enter into.
If you have questions about the above, feel free to contact your expert Family Lawyers in Toronto, David H. Nuri, Barrister & Solicitor. We service clients in the Greater Toronto Area and provide expertise in all sorts of Family Law issues. Give us a call. We are Divorce Lawyers and Family Lawyers that would be happy to have a chat.
The information contained herein is not intended to be legal advice.