Common Law Separation in Canada: Your Rights and Obligations

If you are separating from a common law partner, your rights may be very different from what you expect. This guide explains how the law works in each province so you can protect yourself.

Common law relationships (sometimes called unmarried partnerships) are increasingly common in Canada. In the 2021 Census, nearly one quarter (23%) of couples in Canada were living common law (Statistics Canada, The Daily, July 13, 2022). When these relationships end, the legal rights and obligations of the partners vary dramatically depending on the province. Unlike divorce, which is governed by the federal Divorce Act and applies uniformly across Canada, the rights of common law partners upon separation are governed entirely by provincial legislation, and the differences between provinces are significant.

This is one of the most misunderstood areas of Canadian family law. Many people assume that if they have lived with their partner for a certain number of years, they automatically have the same rights as a married couple. This is true in some provinces but absolutely not true in others. Understanding your specific rights based on where you live is essential to protecting yourself and planning for the future. A separation agreement is especially important for common law partners, as it can define your rights clearly.

Rights Comparison: Common Law vs Married

The following table highlights the critical differences in how each province treats common law partners compared to married spouses. Pay close attention to the property division column, as this is where the most significant differences exist.

Common Law Property Rules in Each Province and Territory

• Ontario: Ontario's property division rules apply only to married spouses. Common law partners don't get a share of property under the Family Law Act, but they can make trust or unjust enrichment claims in court (Ontario Family Law Act).
• British Columbia: Couples who've lived together in a marriage-like relationship for at least 2 years have property division rights under Part 5 of the Family Law Act, like married spouses (Province of BC: I am in a common-law relationship. Do we divide our property or debt?).
• Alberta: Since January 1, 2020, the Family Property Act has applied to adult interdependent partners: people who've lived together for 3 years, or in a relationship of some permanence with a child, or who've signed an adult interdependent partner agreement (Alberta: Dividing property between unmarried partners).
• Manitoba: The Family Property Act applies to registered common law partners, and to partners who've lived together for at least 3 years (Manitoba: Common-law partners and property).
• Saskatchewan: The Family Property Act covers couples who've lived together as spouses for 2 years or more (The Family Property Act, s. 2(1) "spouse").
• Nova Scotia: The Matrimonial Property Act covers married spouses and registered domestic partners only. Unmarried partners who haven't registered don't have property division rights under it (Nova Scotia Family Law: Common law relationships and registered domestic partnerships (Matrimonial Property Act)).
• New Brunswick: The Marital Property Act applies only to married spouses, so common law partners don't have property division rights under it (Family Law NB (PLEIS-NB): Common-law partnerships).
• Prince Edward Island: PEI's Family Law Act divides family property only between married spouses, so common law partners don't have property division rights under it. Partners who've lived together for 3 years, or who have a child together, can still claim support (PEI Family Law Act, s. 1(1)(g) and s. 29).
• Newfoundland and Labrador: Newfoundland and Labrador's property law doesn't divide property between unmarried partners: each person keeps what belongs to them (Supreme Court of NL Family Division: Property).
• Yukon: Yukon's family property rules (Part 1 of the Family Property and Support Act) apply only to married spouses. Common law partners can claim support under the Act (section 37), but not a share of family property (Yukon Family Property and Support Act).
• Northwest Territories: The Family Law Act treats partners who've lived together for 2 years, or in a relationship of some permanence with a child, as spouses, so its property rules (Part III) apply to them (NWT Family Law Act).
• Nunavut: Nunavut's Family Law Act treats partners who've lived together for 2 years, or in a relationship of some permanence with a child, as spouses, so its property rules (Part III) apply to them (Nunavut Family Law Act (CSNu c F-30), s. 1(1) and Part III).

Common Law Rights in Ontario

Property Division: No Automatic Rights

In Ontario, the Family Law Act's property division provisions (Part I) apply only to married spouses. Common law partners have no statutory right to share in their partner's property upon separation. This means that if your partner owns the home you live in, you have no automatic right to a share of that home, even if you have lived there for decades, contributed to mortgage payments, or helped renovate the property.

The only legal avenue for a common law partner in Ontario to claim a share of their partner's property is through the equitable doctrine of unjust enrichment. This is a court claim (not a statutory right) that requires you to prove three elements: (1) your partner was enriched, (2) you suffered a corresponding deprivation, and (3) there is no legal reason (such as a gift or contract) that justifies the enrichment. If successful, the court may award a monetary payment or, in some cases, a share of specific property through a constructive trust. These claims are complex, expensive to litigate, and the outcome is uncertain.

Spousal Support: Available After 3 Years

While common law partners in Ontario have no automatic property rights, they do have the right to claim spousal support under the Family Law Act if they have cohabited continuously for at least three years or if they are in a relationship of some permanence and have a child together. The amount and duration of support are determined using the same principles and guidelines that apply to married spouses, including the Spousal Support Advisory Guidelines.

Children: Same Rights as Married Parents

The rights of children are the same regardless of whether their parents were married or in a common law relationship. Parenting arrangements (decision making responsibility and parenting time under the Divorce Act) and child support are determined based on the best interests of the child, not the marital status of the parents. Child support is calculated using the Federal Child Support Guidelines.

Protecting Yourself in Ontario

For a detailed look at how assets are divided across provinces, see our property division guide. If you're looking for a family lawyer, browse family lawyers across Canada.

Common Misconceptions

There are many widespread misconceptions about common law relationships in Canada. The following table addresses the most common myths and clarifies the reality.

Frequently Asked Questions

This content is for informational purposes only and does not constitute legal advice. Laws vary by province and individual circumstances. Consult a qualified family lawyer for advice specific to your situation.