Navigating a separation, especially in a common-law relationship, can present unique challenges and uncertainties. Whether you’ve recently parted ways or are contemplating the next steps, understanding your rights is crucial, even if you were never married.
In Ontario, common-law partnerships hold distinct legal standings from marriages, particularly concerning property division and custody matters. This article delves into these differences, shedding light on what you need to know to protect your interests and navigate this transitional period with clarity and confidence.
When Do You Become Common Law in Ontario?
In Ontario, establishing a common-law relationship hinges on cohabitation for at least three continuous years. This means living together and sharing a romantic life as a couple.
However, there’s an important exception: if you and your partner have a child together, common-law status can be established even if you haven’t cohabited for three years.
Separation and Property Division For Common Law Partnerships
While a common-law separation doesn’t involve a formal court process like a divorce, it’s still an important step that requires careful consideration.
One key difference between common-law partnerships and marriages is the division of property.
Unlike married couples who have an equal claim to family property, common-law partners generally keep what they brought into the relationship or acquired during it. This means the date of separation, which is usually considered the date you and your partner stopped living together and ceased your romantic relationship, becomes crucial.
However, things can get more complex if one partner significantly contributes to the other’s property during the relationship. For example, if you helped pay off your partner’s mortgage or renovate their home, you may have a claim for a contribution. In these situations, having a clear separation agreement can be invaluable. A separation agreement, drafted with the help of a lawyer, outlines how you and your partner will divide your assets and address any outstanding debts. This written agreement can not only streamline the mediation process but also help avoid future disputes.
While a separation agreement isn’t mandatory, it’s a powerful tool for ensuring a fair and amicable separation.
The Family Home
While the rules surrounding the family home differ for married couples, common-law partners also have rights to consider during separation.
Here’s a breakdown of key points to remember:
- General Rule: Unlike married couples who share an equal claim to family property, common-law partners in Ontario typically keep what they brought into the relationship or acquired during it. This applies to the family home as well.
- Joint Ownership: If you and your former partner jointly own the family home (both names are on the title deed), the division of proceeds upon separation will depend on the specific ownership arrangement. There may be a pre-determined percentage of ownership outlined in the deed, or it may be split equally.
- Significant Contributions: Things can become more complex if one partner significantly contributed to the other partner’s property rights in the home. This could include situations where a partner made substantial mortgage payments, funded renovations, or contributed a significant down payment despite not being on the title. In these cases, the partner who made the contributions may have a claim for compensation.
Protecting Your Rights:
The best course of action to protect your interests regarding the family home is to:
- Review your ownership status: Check the title deed to confirm how the ownership of the home is registered.
- Consider a cohabitation agreement: If you’re entering a common-law partnership or already in one, a cohabitation agreement drafted by a lawyer can clearly outline ownership rights and the division of assets, including the family home, in case of separation.
- Seek legal advice: If you’re facing separation and have questions about the family home, consulting with a lawyer experienced in common-law separation is crucial. They can assess your specific situation, advise you on your rights, and explore potential options for resolving the ownership issue.
Child Custody and Access (if applicable)
The breakdown of a common-law partnership can be a difficult time, especially when children are involved. Fortunately, common-law parents in Ontario have similar rights and responsibilities regarding child custody and access as married parents.
Custody & Access Arrangements:
The primary focus in any child custody case involving common-law parents is the child’s best interests. Ontario courts consider a variety of factors when determining custody and access arrangements, including:
- The child’s age and maturity level
- The child’s relationship with each parent
- The child’s emotional and physical needs
- The living arrangements of each parent
- The ability of each parent to provide for the child’s needs
Common-law parents in Ontario share similar child custody and access rights as married couples, following the introduction of the changes under the Children’s Law Reform Act (CLRA) in 2021. However, unlike married couples, common-law partners don’t have an automatic right to custody or access upon separation.
The court prioritizes the child’s best interests when determining custody arrangements, considering factors like the child’s age, relationship with each parent, and living arrangements. Common arrangements include:
- Sole Custody: One parent has the primary decision-making authority, while the other may have parenting time (replacing access).
- Joint Custody with access: Both parents share decision-making, with one parent typically having the child reside with them for a majority of the time. The other parent maintains regular parenting time according to a pre-determined schedule.
- Split Custody: This arrangement involves each parent having sole custody of one or more children from the relationship.
Regardless of the arrangement, minimizing conflict and creating a stable environment for the child is crucial.
Learn more about custody and access in Ontario.
Prioritizing the Child’s Well-Being:
Regardless of the specific custody arrangement, the well-being of the child remains paramount. Custody agreements should be structured to minimize conflict between parents and promote a stable and nurturing environment for the child. Studies consistently show that exposure to parental conflict can have a detrimental impact on a child’s emotional development.
Resolving Disputes: Mediation vs. Court
When facing disagreements regarding child custody, access, or property division, finding an amicable and cost-effective solution is often ideal. This is where mediation can be a powerful tool.
What is Mediation
Mediation is a collaborative process where a neutral third party, a mediator, facilitates communication and helps you and your former partner reach mutually agreeable solutions. The mediator doesn’t impose decisions but guides discussions to explore options and identify common ground. This approach can help reduce conflict and foster a more respectful environment, especially beneficial when children are involved.
While mediation is often the preferred approach, there may be situations where it’s not suitable. In cases with complex legal issues or significant disagreements that can’t be resolved through mediation, the court system may become necessary. A lawyer can advise you on whether mediation is the right option and provide strong representation in court if needed.
If you would like to speak with one of our lawyers regarding further issues related to this topic please contact us at (416) 840-1475 or schedule your free initial consultation here.
