COMMON LAW SPOUSES

Common Law Spousal Support Rights & the Family Law Act

Under section 29 of the Family Law Act common law spouses are included in the definition of “spouse”. The definition includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years or in a relationship of some permanence if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. It is important to note that as a common law spouse, you do not have the same rights and obligations as married spouses. This is a misconception and myth. It is important to know and understand the differences between married and common law spouses in order to protect yourself.

 

Common Law Separation Lawyer | Legal Remedies

 

There are several legal remedies available for common law partners that have chosen not to be married and not to have the laws that apply to married spouses apply to them.

 

Where a common law couple has acted for years like each were sharing their assets, or where one partner made a lot of contributions, either with money or his or her own labour, to the other partner’s assets, there are remedies available. These are called “equitable remedies” – if the partners treated an asset as if it’s owned by both of them, the Ontario Superior Court of Justice could declare that the partners shared ownership of this asset.

 

Common law partners can also enter into an agreement that sets out how the assets will be divided and what spousal support will be paid. The contracts, which are called “cohabitation agreements”, are very similar to marriage contracts. They allow common law spouses to decide how several issues (they are not binding with regard to parenting and child support) will be dealt with after separation. Unless the agreement is set aside, common law spouses will have whatever rights with regard to property and spousal support that the agreement sets out. Among the requirements for a court to enforce such an agreement is that both parties had access to independent legal representation, full financial disclosure from the other partner and took part in negotiating the terms.

 

It is important to know and understand Ontario common law and the distinctions between married and cohabiting spouses in order to protect yourself in the event that your relationship breaks down.

The following is a list of cases where cohabitation was found to exist:

 

a. Hazlewood v. Kent, [2000] O.J. No. 5263 (Ont. Fam. Ct.)

 

The parties were the parents of two children. The father worked in one community but spent his weekends at the mother’s residence. The father had a room at the mother’s residence in which he kept things of a personal nature. The mother cleaned the father’s room. The parties had discussed marriage and had jointly met with a financial planner. The father had named the mother on an application for extended health benefits through his employment. The parties spent their weekends together sharing common activities as a family. The father had given his coworkers the telephone number of the mother in the event that he needed to be called on weekends. The parties had considered marriage.

 

b. Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Gen. Div.)

 

The parties began an affair while both were living with other partners, seeing each other 2-3 times each week. After three years of the affair, Thauvette left her spouse and moved into a home owned by Malyon and for which Malyon continued to pay all of the expenses. A year later Malyon also left his spouse but the parties chose to maintain separate residences to keep the children apart and to facilitate Malyon’s access to his children. When Thauvette moved out of the home provided for her by Malyon, Malyon helped her with the purchase price of another residence with an advance of $30,000. Thauvette helped Malyon on a regular basis with his farming operation, working with the animals and doing domestic chores. They spend 4-5 nights each week together during this period of their relationship.

 

c. McEachem v. Fry Estate, [1993] O.J. No. 1731 (Ont. Gen. Div.)

 

Following the death of their respective spouses the parties commenced a relationship that lasted for 15 years until the death of Mr. Fry. While they maintained separate residences and pursued some of their own interests, they spent the bulk of their free time together including at least two nights each week at the other’s residence. They socialized as a couple in public. They took annual vacations together each year. Ms. McEachern did domestic chores at his house and he paid for maintenance items at her house. He provided clothes for her costing at least $2500 annually. He bought her a fur coat. He provided for her in his will. They were known as a couple within the community and were faithful to one another. They celebrated their “anniversary” each year.

 

Cohabitation was not found in the following cases:              

 

d. Obringer v. Kennedy Estate (1996), 16 E.T.R. (2d) 27 (Ont. Gen. Div.)

 

The parties had a twenty-year, intimate, exclusive relationship, that included sexual relations, holidays together, gift exchange, personal services and joint friends and acquaintances. Cohabitation was not found however, as there was no common residence and they were financially independent of one another.

 

e. Nowell v. Town Estate 1994 CanLII 7285 (ON SC), (1994), 5 R.F.L. (4th) 353 (Ont. Gen. Div.)

 

The parties had a 24-year affair, maintaining separate residences. Town was married and living with his wife at the time and Nowell knew of her existence. The parties were together most weekends at his farm/work studio and did some work together. They maintained separate residences.

For more information contact our common law separation lawyers located in the Greater Toronto Area, call us at (416) 227-1653 or send us an email at: 

ggottlieb@gottlieblawfirm.com

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