Single law needed on common-law separation

About 41 per cent of Canadian marriages today do not end in “death do us part.” 

Instead, they end due to mutual incompatibility and in an excessive amount of paperwork. Finalizing a divorce can — and often does — take years. It is both financially and emotionally draining. Divorcing couples can and do lose their homes, friends, communities and a staggering amount of money as they go about the arduous task and sorrow of extracting separate lives from what was meant to be a permanent union that has been torn asunder. 

In Ontario, the process of divorce is governed by a combination of the Divorce Act and Family Law Act, which lay out the rights and obligations of the divorcing parties. In addition to spousal support, divorcing couples are entitled to an equalization of net family property (a process designed to ensure both spouses benefit from financial gains made by the couple throughout the marriage) and continuing rights to the family home, even if only one spouse has their name on title.  

What about those couples who never formally exchange vows? Common law marriage — where a couple shares a home, finances and often children without being legally married — is on the rise in Canada. As of 2016, according to Statistics Canada, one fifth of all couples live in common law relationships.

Whereas divorcing couples are largely governed at the federal level, which provides for a great deal of uniformity, common law couples who choose to separate is largely governed at the provincial level. As a result, every province seemingly has its own approach to governing the breakdown of common law relationships,  and Ontario’s approach is abysmal. 

In Alberta, you can find yourself in an Adult Interdependent Relationship without having entered into a conjugal relationship as long as you have cohabited with another unrelated adult for at least three years in a mutually dependent relationship or agree to form that partnership in writing. In Manitoba, common law couples are granted all of the same property rights as married couples under the Common-Law Partners’ Property Act, and they have the option of registering their partnership under the Vital Statistics Act. In 2013, the British Columbia legislature redefined spouse to include common law couples who have lived together for at least two years, functionally erasing the difference between common law and legally married couples.  

Ontario’s Family Law Act does not explicitly recognize common law relationships, but it does grant some rights and responsibilities to couples who have either cohabited for at least three years or lived together in a relationship of some permanence and have children together. So what do Ontarians gain from withholding the full measure of marital protections and privileges from common law couples? Is it easier to extract yourself from a marriage-like relationship if you never actually married? Not always. 

If a couple keeps separate finances, each person remains focused on their own careers and they don’t have children, separation will be easier than divorce. However, once the detritus of family living begins to accumulate, that simplicity disappears. For example, in Ontario, if title to the home in which the parties live is in the name of only one party but the other spouse was responsible for physically doing or paying for renovations to the home, how is that contribution quantified? If one partner took some time off to take care of the kids, freeing the other partner to focus on their career, how can you put a dollar value on that sacrifice?

In Ontario, if you are trying to extricate yourself from a common law relationship, your separation will be governed by a patchwork of legislation and relatively esoteric common law principles. The Divorce Act will not apply to you but the Family Law Act will apply to you with regards to child support and spousal support. However, it will not grant you the right to equalize net family property or give you any rights to the family home if it is solely in your former partner’s name. As a result, in order to determine what rights you might have to the family home, you will have to bring a claim in unjust enrichment or argue that your family contributions have established a constructive or resulting trust. If you want to make a claim for division of property accumulated during the relationship, good luck. 

The legal process, simply put, for common law couples who are separating is far more complex than the process for couples who were married and separating. In family law, complication equals expense and delay. As a result, common law separation can be even more complicated and expensive than divorce. This added expense and uncertainty disproportionately affects vulnerable people who may not have the resources necessary to fully pursue their legal rights. They might not even be able to begin understanding what legal rights they have without the help of a lawyer.

At the heart of the support provisions enacted by both the provincial and federal legislatures is the idea that marriage is a deeply intimate partnership where both parties contribute to the well-being of the family unit. If one spouse’s contribution to the family leaves them in a vulnerable financial position after the dissolution of that relationship, our legislature has recognized the value of their role within the family and acted to mitigate that vulnerability. Those contributions and vulnerabilities are as real and present in common law relationships as they are in marriage. 

When the Ontario legislature and Ontario courts deny common law couples the same rights and responsibilities enjoyed (and sometimes resented) by the formerly wed, we’re also denying them the protection and support of our communities. Breaking up is hard to do, but it doesn’t have to come with an unnecessarily complex legal scheme. Manitoba and British Columbia have already shown that it doesn’t have to be this way. It’s time for the Ontario legislature to follow suit.

Robert Shawyer is a senior family law lawyer and advocate for family law justice reform. He can be contacted at [email protected].