Of all adults in Canada between the ages of 25-64, there are 65% in traditional marriage and 15% in a common-law relationship. The definition of common law in Canada varies between the federal government and individual provinces. If you plan to begin a cohabitation arrangement, understanding common law in Canada is important.
Each province has its own rules regarding child custody, property, and taxes. There are also significant differences between what the Government of Canada and the government of each individual province require to qualify for this status.
What Is Common Law in Canada?
The government of Canada views common-law marriages as de facto. This means that each marriage must be viewed on a case-by-case basis to determine its validity. This is different than a de jure marriage, which means established by law.
To establish a common-law marriage, you must prove cohabitation and conjugal marital status. Canada law considers cohabitation as being two people who combine all their affairs and establish a household together in one residence.
When Are You Considered Common Law in Canada?
The Canadian government considers a cohabitating couple to be part of a common-law marriage after one year of living together. The relationship begins on the day the two people are able to furnish proof that they began life as a conjugal couple.
The government requires that the cohabitation period be continuous during the 12 month period. If there were periods of time when you did not live in the same household, you may not qualify as a common-law marriage under the rules of the federal government.
Individual provinces do not necessarily recognize the marriage after only a 12-month period. You must familiarize yourself with the laws of the province in which you reside.
Common-Law System in Canada
The Supreme Court of Canada upholds the ability of provinces to distinguish between a common-law relationship and a legal marriage. In Eric v. Lola (Quebec Attorney General v. A, 2013 SCC 5) the court held that violating the Charter when applying laws of property division and spousal support can be justified.
It also made a determination in Walsh v. Bona (Nova Scotia Attorney General v. Walsh, 2002 SCC 83) that excluding common-law relationships from being described as a spouse is not discriminatory.
The ruling of the Supreme Court in January 2013 was the determining factor in the ability of provinces to make their own separate laws regarding common-law couples. This ruling allows each province to make its own rules regarding the recognition of common-law relationships. Provinces also have governing rights over whether and the rules governing how it allows couples the benefits of marriage without a legal certificate.
If you reside in the province of Alberta, your common law marriage falls within the ruling of the Adult Interdependent Partner Act. To be considered Adult Interdependent Partners, you must live together for at least three years. The exception is if you have a child together and reside in the same household as a couple.
The division of property for both Adult Interdependent Partners and those who have a traditional marriage fall under the Matrimonial Property Act of 2020. Continue reading here for more in depth look at how the common law system works in Alberta.
British Columbia’s definition of a spouse is found in the province’s Family Law Act. To be considered a spouse you must be either legally married or you and your partner must live together for a minimum of two years. After two years you have the legal rights to common-law marriage.
The exception to this is if you and your partner have a child born together prior to the two-year date. With the birth of a child, your relationship will be recognized as common law.
If you and your common-law partner decide to split, the rights are equivalent to that of traditional marriage. This means you will each receive 50% of all property and debt.
There are exceptions to this, which includes the property one person receives as part of an inheritance. If there is debt a partner owed prior to the beginning of the relationship that is also excluded.
British Columbia has several rules governing common law separation. While you do not have to partake in a formal divorce proceeding, you do have specific obligations and restrictions. For instance, one partner is unable to prevent the other from entering the home they shared during their partnership.
One of the ways to make sure all your legal rights are met, including division of property in the event of a separation, is to sign a cohabitation agreement prior to residing together. A cohabitation agreement provides joint protection by setting forth property ownership, inheritance, and liability in the event of a separation or if one partner dies.
The common law rules of Manitoba are provided in Manitoba’s Family Property Act. The Act requires you and your partner to live together for at least three years in a conjugal relationship. If the two of you have a child together, this time frame may be reduced to one year.
You need to register your common-law marriage with the Manitoba Vital Statistics Registry.
You and your partner must reside for a continuous three-year period to be considered a common-law partnership according to the New Brunswick Family Services Act. If you have a child together the government may consider you to have a common-law marriage in less than three years. Have more questions about being common law in New Brunswick? Keep reading here to learn more.
Newfoundland and Labrador
The rules in Newfoundland and Labrador require couples to live together in a conjugal relationship for a minimum of two years. The law recognizes relationships between people of the same sex and opposite-sex equally.
If you are involved in a common-law relationship and separate, the amount of time you were residing together and your particular situation will determine your rights under the law.
Neither the Marriage Act nor the Family Law Act includes rules for dividing the property of those who are in common-law relationships. The only exception is if you and your partner opted into the Family Law Act by way of contract.
The North West Territories has three designations for a spouse
- A couple is legally married
- Having a marriage-like relationship for at least two years
- Living with someone less than two years and having a child together
Under common law, the province does not provide you with the rights of those who are legally married.
The government does allow for marriages of the opposite sex and same-sex marriages. You register your marriage with Vital Statistics and receive a certificate to prove your relationship. Details about what marital relationships are in the family can be found in the Law in the NWT guide.
Nova Scotia's Maintenance and Custody Act provides the rules on common-law relationships. To receive marital rights you must follow the Nova Scotia Vital Statistics Act and register as having a "domestic partnership."
The Nova Scotia government requires couples to live together for a minimum of two years before claiming property the same as a married couple. This includes spousal support and marital property such as a car or family home.
In Nunavut, 50.3% of relationships are common law. Common-law relationships are more common in Nunavut and are increasing faster here than in any other Canadian province.
The province defines a common-law partner as someone you are in a conjugal relationship with who is not a legal spouse and at least one of the following applies:
- Residing together for 12 continuous months, including any periods of separation that were less than 90 days
- Your partner is the parent of your child by adoption or birth
- Your partner has custody or control of your child and your child is dependent on your partner for support
Common-law couples in Nunavut have more children than couples in other parts of the country. About fifty percent of couples have children.
For the government of Ontario to consider you to have a common-law marriage you must reside together for a minimum of three years. If you give birth to a child within that time period, you may obtain an earlier qualification. This rule does not apply if the child is born within the first two years.
This is because the Ontario government does not consider you having cohabitation status until you have been living together for at least 24 months.
Many provinces treat common-law and legally married couples the same if a separation occurs. Ontario does not. In a common-law marriage, Ontario does not divide all property equally. They tend to award the property to whoever's name is on the title.
This can create a problem if your partner dies without a will and testament making you the beneficiary of the property. You only are entitled to the property you owned prior to entering the relationship or property that has your name on the title.
For this reason, if you are entering into a common-law marriage in Ontario you need to create a will providing for your partner’s inheritance. In addition to a will, having a cohabitation agreement in place prior to residing together protects both people in the event of a death or separation. These legal documents provide legally binding protection in the event you decide to separate or one partner dies.
Another way to provide for the financial protection of your partner is to make sure each of you has life insurance. Funds from a life insurance payout can bring peace of mind during a stressful period of time when one partner is struggling to provide a proper funeral and burial while meeting household expenses on their own.
Prince Edward Island
Common-law marriage on PEI requires a couple to live together for at least three years in a conjugal relationship. If in a conjugal relationship and the couple has a child together, they are spouses under the law.
The property division portion of the Act only applies to couples who are legally married. If you are in a common-law relationship you have no legal rights to property division. If your name is not on the title you have no right to remain in the common home after separation.
Entitlement to spousal support, child support, and child custody are the same for both legally married and those in common-law relationships.
Common-law partners have no marital estate rights if their partner dies. They do not receive any inheritance unless they are a beneficiary of their partner's will and testament.
They may also designate their partner as a beneficiary on their insurance. This is an excellent way to provide financial security, pay for their funeral, support their children, and provide for their spouse.
Quebec is the only province in Canada that does not recognize common-law marriage. A ruling of the Supreme Court of Canada in 2013 allows the province to not recognize common-law relationships.
No matter how long a couple resides together, they receive no marital benefits upon separation or death of a partner.
The only way a couple receives benefits from the relationship is by taking steps to provide for their spouse. This can by listing their spouse as a beneficiary in a will and testament. They may also list them as a beneficiary on life insurance.
The laws of Saskatchewan require couples to live together for at least two years to qualify as a common-law partnership. The Family Property Act establishes rules on property division. It also covers spousal support, child support, and child custody determinations.
Traditional and common law marriages have the same rights and obligations in Saskatchewan.
In all Canadian provinces when you marry your will is automatically invalidated. The reasoning is that you created the will prior to having a spouse, and you will want your spouse to inherit all or a portion of your estate.
Saskatchewan law takes this one step further by protecting common-law spouses. If you live together for two years as a couple, your common-law status will invalidate your will automatically. This happens on the two-year anniversary of cohabitation.
Common-law couples who move to Saskatchewan after two years of cohabitation are also impacted by this law. Upon moving to Saskatchewan, your will becomes invalid upon arrival.
If you have a common-law marriage in the Yukon and separate, you must apply for spousal support within three months of separation. If you do not apply within that time period you are no longer eligible.
The rules for common-law couples separating fall under the Family Property and Support Act. This applies to spousal and child support only. There is no law regarding the division of property when you are a common-law couple.
The exception is if you have a written cohabitation agreement about separation. The agreement must state you will follow the property division rules of the Family Property and Support Act. If you do not have an agreement with this wording the division of property is according to ownership.
You may also be able to establish an interest in the property under the law of constructive trust. This means your contribution to property through labour or financially may result in it being subject to division. Many couples in the Yukon refer to the guide Splitting Up: The Yukon Law on Separation, for both married and common-law unions.
Understanding Common Law in Canada
When trying to understand common law in Canada, there is a lot of variation between the provinces and the federal law. When you are in a common-law relationship you want to make sure the needs of your family are met. One of the best ways to provide for your family is to make sure you have financial resources in place.
Insurdinary can help you find the best insurance rates, mortgage rates, and more in Canada. We provide free information on products, benefits, and price comparisons. You may then apply online to get the best rates.
Provide for your common-law spouse today. Get a quote to bring peace of mind to you and your spouse that their needs will be met.