Common Law Ontario Common Law Ontario

What to Know About the Common Law Ontario: Best Guide of 2022

A guide to Common law Ontario 

Society has many purposes, and its members have many roles to play. Every day, many mishaps occur, and it is critical to keep everyone’s life running smoothly.

Law has a vital role in preserving peace, fairness, and tranquillity, and one of the most significant areas of law, known as common law, plays an essential function in this regard.

Canada is a magnificent country with a long history in several subjects, one of which is the law. Canada is one of the countries that have common law in place.

You may have to seek legal advice in this regard, so read this article further to understand the law society of common law in Canada.

Meaning of Common Law

Understanding common law is a collection of laws based on legal precedents established by the courts. What is a precedent, you ask? It is essentially a previous decision made on a specific issue, and that decision is utilized to decide a disagreement or case with comparable circumstances by referring to that decision.

While the literal meaning of common law is this, you shall now take a view of the living common law. It forms the fundamental basis of the judgment of the cases in the future. It is majorly practised in several countries, one of which is Canada.

Common-Law vs Civil Law

Common Law v. Civil Law

Usually, stare decisis, of which the legal precedent is a prerequisite, is not considered for criminal cases. This leads to ambiguity in distinguishing between common and civil law.

A civil system clearly outlines the matters that can be taken to court, the procedures for dealing with claims, and the penalties for offences.

This indicates that the law did it, and everything from the method to the penalty was pre-determined by the legislature through the passage of legislation. Given that law is a dynamic field, civil law is revised frequently.

On the other hand, as briefly described above, common law is based on established judicial authorities’ and popular juries’ judgments and interpretations. In some instances, precedent is determined by specific jurisdictions’ case-by-case traditions.

Experienced lawyers do the cases. As a result, common law aspects may differ among districts. Higher court decisions are usually binding on subordinate courts.

To summarise, civil law is formed by a country’s law-making body and is in written form, whereas common law is the law that follows a previous judgment of a higher court than the court in which a matter is brought.

They have one thing in common: The purpose of common law, like that of civil law, is to achieve consistency by following the same interpretation criteria.

With common law becoming prevalent increasingly, let us look at the common-law relationship in Ontario, Canada, by first understanding the Family Law Act as the common law here is related in some sense with the Common law.

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Family Law Act

In Ontario, married couples’ “matrimonial house” is given special status under the Family Law Act (FLA). When a marriage dissolves, precise regulations govern how the marital house is shared.

This unique treatment of family property does not exist in the case of common-law spouses. In effect, this implies that after the termination of a relationship, whoever is named on the title obtains the home in a court of law.

If a couple cannot reach an agreement, they can go to court, and a judge can order the home to be sold so that any revenues can be divided.

Common-Law Relationship


Common-law relationships are legally a de facto relationship, which means that they must be established on the circumstances of each particular instance. In contrast, a marriage is a de jure partnership, which has been constituted in law.

Generally, a common-law partnership partner is a couple that has lived together in a conjugal relationship for at least a year. However, in Ontario law, couples who cohabited for at least three years are considered common-law partners.

They need to live together for one year if they have a kid together through birth or adoption.

When it is said that you have been living together for a year or at least three years, it must be continuous, implying that your cohabitation has resulted in the establishment of a household together as common-law partners.

When seen through the lens of a common-law partnership, intermittent cohabitation is not deemed cohabitation. Briefly, it should be a relationship of some permanence.

Furthermore, if one partner or both the partners have left the house for work or business trips, family responsibilities, or other reasons, the separation must be brief and transient. You could even go for a free initial consultation.

Common-Law Partner

According to case law, the definition of a common-law partner should be read as “an individual who is (ordinarily) cohabiting.” As mentioned above, the cohabitants must be residing together for a continuous period of a year or three years in the cases cited as ‘Common law partners.

However, after this period, the partners may live apart for extended periods despite retaining a common-law relationship. Regardless of the interruption in cohabitation, a common-law relationship exists if the couple has previously cohabited continuously in a conjugal relationship for at least one year and intends to do so again as soon as practicable.

There should be proof that both partners are still in the relationship. It is even used for spousal support purposes.

Conjugal Relationship

It was mentioned quite a few times in the above content regarding conjugal relationships. However, what exactly is a conjugal relationship? It is more than simply a romantic or sexual bond.

In Canada, a “conjugal relationship” would be one where two individuals share a house, money, child support, and an emotional connection in addition to a sexual relationship.

There should be a cohabitation agreement and a marriage contract in the case of a spouse. The partner’s property must be well enough, and they should be legally married couples. You must exchange financial information.

Common-Law Spouse


According to Family Law Act, “Spouse” refers to either two people who are married to each other or who have engaged in avoidable or void marriage together in good faith on the part of the person depending on this provision to establish any entitlement.

A referral to marriage in the definition of “spouse” includes a marriage that is really or possibly polygamous if performed in a state whose legal system recognizes it as lawful.

According to the law, you and your spouse have an equal right to remain in the family home. If you divorce, you must decide who will remain in the house.

The definition of the common law connection differs slightly in each Ontario act. In Ontario, a couple of common-law partners’ definition depends on whatever legal rights are at stake. As a result, the status of a common-law partner heavily influences family law and estate law rights and duties.

There are particular legal considerations to examine when determining who is and is not a common-law couple. And they may be relatively complex, and one may have to take up some legal advice if you find it difficult.

However, by the end of this article, you will get a full-fledged view of the common law relationships. The following are the basic questions you’ll need to answer to determine your common-law status:

  • Did you and your partner share a home?
  • What is your sexual and personal conduct like?
  • Did you and your partner help and support each other in the same manner as conventional family members do?
  • Did you and your companion act as if you were a couple?
  • How did the individuals of your community perceive the nature of your relationship?
  • Did you help each other out financially, or did you pool your resources?
  • Did you behave “parentally” with your partner’s children? Do you have common ancestors?

Property rights, unjust enrichment, constructive trusts, marital houses, child support and child custody, estates, health care, and what defines “cohabitation” are also highly particular rights and duties under common law relationships’ status.

It is a no-brainer that when marriage ends or the relationship ends, upon separation, there should be equal division so that the spouse agrees, and there should be well-settling of the legal issues the same way in which they were added up.

A domestic contract about separation agreement always comes into the picture, even during common law separation.

Common-Law Family Property

Only married spouses and not cohabiting spouses may benefit from a common-law equalization of family property if their marriage ends under the aforementioned family law act.

The marriage’s financial advantages are divided equally. The net family property is calculated for both common-law spouses, and the richer of the two common-law spouses agree to pay the other common-law spouse half of the difference.

There is little court supervision, and spouses can sell assets other than the marital house for their property division.

Custody of the Matrimonial Residence

The statute safeguards ownership rights in the marriage residence between the common law spouses since it is occasionally necessary to remove one spouse to prevent domestic violence or mediate the impact on children.

Even a marriage contract entered into before the marriage/period of cohabitation is not legally binding (section 52(2) FLA). Part II of the FLA only pertains to married spouses; hence unmarried cohabiting spouses do not have possessory rights.

Many of the inequalities caused by distinct regimes for married and unmarried cohabiting couples have been addressed by common law. If a cohabitant is charged with a crime, the offender may be barred from returning to the marital home under specific conditions.

Custody and Child Support

However, regardless of marital status as married or common-law couples, citizens of Ontario have the same rights and duties in terms of child custody and child support.

Property Scenario on Separation of a spouses

Once the common law spouses agree to divorce and their marriage ends, many issues may arise. Property is primarily kept by the person who has a legal entitlement to it and is allocated.

In common law instances where there is a divorce, no total family property assessment or equalization payment is envisioned. You do, however, have choices if you were/are in a common-law relationship and believe you should be entitled to an interest in or remuneration for any contributions made to the purchase, preservation, or upkeep of the property.

You can request that your spouse reimburse you for any monetary and non-monetary contributions you may have contributed to the property.

Resulting Trust

A resultant trust is when a partner contributes or assists in paying for the property. However, after the divorce, the property is still due to the other spouse, which is unjust because it is not entitled to the spouse who financed it.

He must either gain whole or partial interest. The interest equivalent to the dividing property and its donation is refunded at the time of separation. As a result, they become the beneficial interest holder, and the legal title holder is believed to be the trustee for the beneficial interest holder.

This means that the courts might order it to be jointly or solely held by the spouse who paid for it. Where money is withdrawn from a shared bank account into which the married couple has placed monies, there is clear proof of a “common purpose.

Constructive Trust

A constructive trust allows a person to partake in the value of something (or have an interest in it) even though they do not have a legal title. It signifies that the common-law partner has made a monetary investment in some form. It is unjust if they do not have a proportionate share in the property or the matrimonial home in the case of common-law spouses.

The courts impose a constructive trust when the Supreme Court of Canada’s 1980 standard is met. Unlike a resultant trust, it does not need the discovery of proof of a shared purpose to be established. The standards are as follows:

One of the common law couples must be financially endowed.

A commensurate deprivation of the other common-law spouse; and

No legal or moral justification for the enrichment.

Contributions can be both financial and non-financial. Once these three criteria have been met, the next step is to demonstrate a causal link between the contribution and the attribute. If this relationship is established, a constructive trust will develop. Non-monetary contributions may include, but are not limited to, the following:

Providing child support so that the other common-law spouse may make a living and acquire the property in issue.

Taking complete responsibility for all household activities (such as cooking, laundry, and cleaning) so that the other common-law spouse may concentrate on their job, leading to an increase in income and property acquisition.

A constructive trust permits a cohabiting spouse who is not on title to acquire property in a specific asset, such as the matrimonial house. Thus, a cohabiting spouse who has stayed at home with the children and fulfilled most domestic activities may be given monetary compensation or a constructive trust over the marriage house when their contribution is related to the property itself.

Unjust Enrichment

A simple claim for unjust enrichment may be filed if a relationship between the donation and the property in question cannot be established. The courts will use the three principles of unjust enrichment to try to correct a fundamentally unfair situation in which one person benefits from the labor.

The disadvantaged spouse or the partner will be compensated for their contribution. The amount that the party who benefited would have had to pay for the contributions made A common-law spouse is not required to provide services to a partner, but there is a presumption that such services will be rewarded. As a result, no further maintenance is obligated to pay the other party.

What happens to my partner’s property if they pass away?

This question is quite frequently asked, so here is its answer.

  1. Determine whether your partner had a will-You can look through your partner’s files to uncover a will or if your partner has a safety deposit box at a bank or similar institution with your partner’s lawyer.
  2. Consider whether to file a resulting trust claim.
  3. Think about whether to make an unjust enrichment claim.

Conclusive Overview

To summarize, this was the common law in Ontario, Canada. The article demonstrated how Law has a key part in maintaining peace, justice, and tranquillity, and one of the essential branches of law, known as common law, plays an important role in this respect.

It is more than just a romantic or sexual connection. A “conjugal relationship” in Canada is one in which two people share a home, money, child support, and an emotional connection in addition to a sexual relationship.

In a nutshell, a common-law partnership or a common-law relationship involves common-law partners or common-law spouses that should be some relationship.

A common law relationship is a relationship of some permanence.

Last Updated on by Priyanshi Sharma


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