Many people assume that as it is 2016 the rights and obligations associated with marriage are extended to those in common-law relationships. While to a certain extent this is true, it is more complicated than one might expect and it is important that people understand the differences before entering into a relationship.
The leading authority in Canada with respect to common-law relationships is the Nova Scotia case Walsh which went all the way to the Supreme Court of Canada. The highest court decided that legislation that differentiates between common-law and married couples is not discriminatory as people are free to choose whether they wish to enter into a marriage thereby increasing their rights and responsibilities.
To be considered a common-law couple, two people must be living together in a relationship whereby they consider the other person to be their partner or spouse. They share bills, finances, and they may or may not have children. Every province in Canada has a different length of time they consider sufficient for a relationship to be viewed as common-law. For instance in Ontario a couple has to have been living together for three years. Under the Maintenance and Custody Act in Nova Scotia the length of time is two years. It is important to also keep in mind that other legislation may also have their own interpretation of what constitutes common law. For example the Canada Pension Plan views common law as living together for one year. An exception to all of the above is if you have children together. Having children automatically triggers common law rights and duties.
When a non-married couple has children they can expect to be treated the same as couples that are married with children but only with respect to the children. The Maintenance and Custody Act applies to both married and non-married couples when it comes to children. Custody, access, and child support is not effected by marital status. Further, it may be possible for a person from a common-law relationship to apply for spousal support under the Maintenance and Custody Act. On the other hand, the rights and obligations associated with property within a relationship is very different depending on whether you are married or not.
This is especially true with regards to the family home (where both parties and their children if relevant have lived as a family). When two people are married they both have an interest in the family home; in that case it is called the matrimonial home. It does not matter if only one of the couple is on title to the home; both have a right to an equal interest in the equity. If a couple is in a common-law relationship and only one person is on title to the home, under the law it is that person’s property alone. If the other party wants to try and receive some of the equity they will have to go to court and prove to the court that they should be given some of the equity. This is not necessarily an easy thing to prove. Similarly, whomever is on title to any given property or debt keeps that property or debt after the relationship has broken down. With respect to married couples there is an understanding that all assets and debts were shared equally during the marriage and thus need to be equalized after the marriage breaks down. In Nova Scotia married couples can apply for property division under the Matrimonial Property Act.
There are ways that you can avoid some of the disadvantages of being in a common-law partnership. For example, ensure that both parties jointly hold title to any major assets so at the date of separation you can than seek an equal division. Another option is to draft a Cohabitation Agreement. This is similar to a Prenuptial Agreement and can detail how the parties wish to deal with their assets and debts upon separation. Either way it is always advisable to chat with a lawyer so you can fully understand your rights and obligations. Happy coupling!