Common-Law Separation in Canada: 3 Things To Be Aware Of Beforehand

For two people to become common-law partners, it generally means that they are in a loving relationship and living together without a marriage certification from City Hall. In Canada, this portrays around 21.3% of all legal unions, according to 'The Canadian Encyclopedia.'

However, many couples who found themselves in common-law unions are frequently unclear about what they are entering into from a legal and tax standpoint. For numerous (yet not all) reasons, the Canada Revenue Agency regards you as efficiently equal as a married couple after only one year of cohabitation. 

For this reason, you must account your common-law state on your tax returns accordingly. On the other hand, according to property and family law, your status as common-law is determined after two or, in some cases three years, because it differs from province to province.

So, if a couple chooses to remain common-law, they may need to take few other legal measures about their relationship. Thereby, if they split up as a common-law instead of a married couple, one may not possess any claim to property rights depending on which province they reside in.

The reason behind not possessing any claim to property rights is that a court can assume that if a common-law couple wanted to divide their property rights, they would have done that consciously by establishing shared ownership or appointing a beneficiary in a pre-made will.

Therefore, here are three things that you should be aware of, from a legal point of view, before deciding to be in a common-law relationship with your partner.

Provincial Differences

Common-law unions are affected by provincial jurisdiction and are handled differently in each of the provinces in Canada. So there must be a specific period of living together in each region before the couple's relationship is defined as a common-law union.

Consequently, the legal term 'separation' also falls under provincial jurisdiction, which is also handled differently in each province. For example, common law separation BC-wide is defined as non-existent because there is no such thing as 'legal separation' if you live in British Columbia. So, it does not matter if you are married or in a common-law union; the law considers you separated as soon as you begin living apart from your partner or at least if one of you decides to end the relationship.

On the other hand, Quebec is the only province in Canada that does not acknowledge common-law unions. In Quebec, they are concerned as 'de facto unions,' and partners who live in that union have equal rights and duties such as married couples, no matter how many years they have lived together.

For this reason, if you are ever in need of legal information or advice, you should consider speaking to a lawyer who resides in your province for you to get familiar with the legal terms and conditions of being in a common-law union.

Property Division

Two vital differences divide common law and married partners when taking into consideration property rights.

So, without both common-law partners being listed as possessors of their home, then they do not own the same right to keep living in that home after they separate. Common-law partners do not possess automatic claims to have equal family property or capital acquired during their relationship.

In most common-law cases, the family property and assets will go to the legal owner, and each one of the partners will retain only the things they own personally.

However, common-law partners often presume that they have the automatic right to possess half of their partner's assets after the break-up. Although this is not inevitably true, there is a possibility for one of the partners to make a claim opposing the other's property. 

This can be made through equitable relief claim, and there are two different types of claims: 

• Constructive trust claim - This type of claim may permit the partner who is not the legal homeowner but has made some significant investments into the property to be entitled to get compensation accordingly.

• Unjust enrichment claim - This type of claim permits one partner to dispute that by investing labor, money, or time in the relationship, the other person's life was improved and claim their rights regarding the property. 

Spousal And Child Support

Common-law partners own the same right to support payments as married couples if they have cohabited for at a minimum of three years or they have a child together.

So, to establish the amount, time duration, and which type of spousal support that one partner will have to give the other, there are a couple of considerations that must be taken into account:

• The earnings and terms of each partner;

• The reasonable cost of support payments;

• Work status of both partners;

• The independence and motive of the partner who will be taking financial support.

In each case, the court evaluates if one common-law partner needs financial support and if the other partner can pay that support. Generally, in cases where each of the common-law partners is employed and makes similar earnings, the court frequently does not command in favor of spousal support payments.

On the other hand, when child support is considered, common-law partners have the equal commitment and legal rights as married partners to provide for their children. This refers to the obligation to finance children's support and, at the same time, equal custody rights.

However, when the partners cannot decide or disagree on the custody settlement, the court steps into the picture and makes a decision that will benefit the children the most.

Final Words

While common-law legal rights may be tricky, completely understanding your rights is crucial for defending them. So, before you decide on anything that involves legal knowledge, make sure to know your legal rights better. 

Furthermore, if you still cannot get a better understanding of them because of all the juridical terminology, go to the lawyer's office and take professional legal information or advice if you are experiencing any legal concerns.  

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