Common law partners

(a) What is the definition of common-law partner in Ontario?

Summary

Spouses must cohabitate for at least three years in order to establish a common-law relationship under the ON FLA requiring support, unless the couple has a child together.

Discussion

The definition of “spouse” in section 29 of the ON FLA includes common-law relationships for spousal support purposes. The expanded definition requires either (a) continuous cohabitation for a minimum of three years, or (b) if the couple has a child together, cohabitation “in a relationship of some permanence”. In the latter case, a common-law relationship has been found to exist after as little as 6 months cohabitation. In some cases, the fact that parties maintain separate residences does not prevent a finding of cohabitation: the court will look at all the circumstances and consider the reasons for maintaining a separate residence, such as to facilitate access with one’s children. Cohabitation must also be conjugal, and objective evidence that both parties mutually understood their relationship to be spousal in nature is required to establish a common-law relationship under the ON FLA.

(b) What rights do common-law partners have to property on death, including property that was owned by one partner prior to the relationship and property that was jointly acquired?

Summary

Common-law spouses are not “spouses” within the meaning of the ON FLA’s property division scheme. As a result, the relief available to these spouses upon death or separation is limited to the equitable remedies of unjust enrichment, constructive trust and proprietary estoppel in the discretion of the Courts.

Discussion

The seminal Supreme Court of Canada decisions in Kerr v Baranow and Vanasse v Seguin significantly loosened the barriers to common-law couples who make unjust enrichment claims upon separation or the death of their spouse. To prove unjust enrichment, a claimant must prove that their spouse was enriched, that he or she suffered a correspondent deprivation, and that no “juristic reason” exists for the enrichment. In a domestic context, unjust enrichment arises when parties are engaged in a “joint family venture”, whereby the accumulation of wealth during the relationship can be attributed to some extent to the parties’ collective efforts notwithstanding the fact that legal ownership is not shared. The remedy for unjust enrichment will generally be a monetary award reflective of the claimant’s proportionate contribution to the value of the asset in dispute.

The remedial constructive trust is a remedy available for cases of unjust enrichment where a monetary award is insufficient or inappropriate. In these cases, the claimant must show a direct and substantial link between their contributions and the acquisition, improvement or maintenance of the property in dispute. The trust operates to deem the claimant a part-owner of the property.

Increasingly, common-law claimants are also depending on the doctrine of proprietary estoppel to establish an interest in property owned by their spouse. To obtain this remedy, a claimant must prove that the title-holding spouse (1) induced, encouraged or allowed the claimant to believe that he or she would enjoy some right over the property, (2) that in reliance on this belief, the claimant acted to his or her detriment, and (3) that the title-holding spouse unconscionably denied the claimant the right or benefit which he or she expected to receive.

The foregoing remedies apply where only one spouse legally owns the disputed property. Whether property was acquired prior to or during the relationship is irrelevant except to the extent that an unjust enrichment claim is limited to the property’s increase in value during the relationship. Jointly owned property is subject to the right of survivorship and the presumption of resulting trust.

Note also that where common-law spouses qualify as dependants under the SLRA (see question 8 above), they may be entitled to claim dependant support relief against the deceased’s estate.