Common Law Separation Canada FAQs
“What is a common law relationship?”
A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or of the opposite sex. No legal formalities are required.
“how long does a couple have to live together to be common law?”
It depends on whether the issue is federal or provincial, and in what province you live.
Federal issues include items such as federal government pensions and division of the Canada Pension Plan upon separation.
Property division is determined by provincial law and each province has its own definition of what a common law spouse is.
For Ontario family law purposes, you must cohabit 3 years, or have a child and a relationship of some permanence.
In British Columbia family law, you must cohabit 2 years in a marriage-like relationship.
Under New Brunswick family law, you must live together continuously in a family relationship for 3 years and one person must be substantially dependant on the other for support, or, where the couple lives together for one year and has a child together.
In Nova Scotia, you must live together for two years.
Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months. As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.
“How do the courts determine what cohabitation is?”
Generally, a judge will look at the lifestyle of the parties in a common law relationship.
The normal test used is the one set out in the Canadian case of Moldowich v Penttinen, which sets out the following 7 factors:
1. Shelter – did the unmarried parties share accommodation;
2. Sexual and Personal Behaviour – did the unmarried parties maintain an intimate interdependent relationship and were they so perceived by others;
3. Services – did the common law couple share the traditional functions of a family;
4. Social – did the unmarried couple portray themselves as a couple to the outside world;
5. Societal – how were the common law partners treated by their community;
6. Economic Support – were the unmarried parties economically interdependent; and
7. Children – did the unmarried couple see children as part of their home and interact parentally with each others’ children.
“Can dating or an affair be considered cohabitation?”
Sometimes, yes. It really depends on the facts of the case.
For instance in the Canadian case of Thauvette v Malvon, the common law parties had a 3-year relationship.
During this time, they maintained separate residences.
However, the man helped the woman purchase her home, and spent 4 or 5 nights per week at her home.
The court found that the man and woman were cohabiting.
“At one time during the 3 years my partner and I were in a relationship, we broke up for a few months.
Are we still considered to have cohabited for 3 years?”
Maybe not – it depends on the province. The Ontario Family Law Act requires 3 years of CONTINUOUS cohabitation for there to be a common law relatioship.
An interruption in the 3 years can destroy that continuity.
It really depends on the particular circumstances of the breakup.
If you simply needed time apart and were trying to work things out, then a court will probably find that your relationship was continuous.
If there was an intention by either party to end the relationship permanently at the time of the breakup, then a court will probably find that your relationship was NOT continuous.
In British Columbia, there is no requirement of continuity.
“If I live with my partner for long enough, will we be considered married?”
No. There’s no such thing as common law marriage in Canada.
“If I’m common law Canada, do I need to obtain a divorce?”
No. Your relationship is over when one of you says it’s over.
“I’m living common law in Canada. Is there any way I can have the same benefits as a married person?”
Yes, by entering into a cohabitation agreement. Click here to learn how to PROTECT YOURSELF.
Click here to find out the main differences upon separation between marriage and common law relationships in Canada.
Click here to find out the main similarities upon separation between marriage and common law relationships in Canada.