As a family lawyer, I often get questions from clients, “he and I lived together for 5 years, things are going south, what am I entitled to?” “Are we a common-law couple?” “Am I entitled to half of the family assets as a common law spouse?” The definition of a common-law relationship can vary drastically depending on the area of law. To answer these questions, first, we need to look at the definition of common-law relationship in the family law context.
In the Family Law Act, “spouse” includes either of two persons who are not married to each other and have cohabited,(a) continuously for a period of not less than three years, or(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act (CLRA).
There are 4 types of entitlements that a common- law spouse can potentially claim: (1) spousal support, (2) child support,(3) division of property and (4) custody and access.
In terms of support entitlements, spousal support and child support are calculated in the same way as married couple, although common law couples cannot rely on the Divorce Act, which only governs the relationship breakdown of married couples.
However, unlike married couples, common-law couples do not have statutory property rights in accordance with Part I of the Family Law Act. As a result, at the end of a relationship, the property should be returned to the spouse whom the property belonged to. However, common law couples are not left with no recourse. Under resulting and constructive trust principles,the court generally looks at whether there is an unjust enrichment of the defendant, the plaintiff suffered any deprivation and there is any juristic reason for the enrichment. A spouse is only entitled to a share of the assets if the assets are determined as “joint family venture” by the court.
With respect to child’s custody and access, but common-law couples can only apply under the CLRA. Under the CLRA, a parent or any other person, including a grandpa may apply to the court for an order respecting custody and access. Sections 4-15 of the CLRA outlines specific rules on how to determine parentage.
Unlike married couples, the common-law couples do not have the right to exclusive possession of the matrimonial home as of home. The person who is entitled to possess the home is the person whose name is on the title or the lease, although a common law spouse may apply to stay in the home as part of the support order or apply for a restraining order in the case of domestic violence.
Need assistance with drafting a separation agreement at the end of your common law relationship or not know how to claim your rights as a common -law spouse? Talk to one of our experienced family lawyers in Markham today at 416-238-5100.
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