One of the most common misnomers we come across with clients and at seminars and conferences, is:  that once you have lived in a common law relationship for a number of years (one, two or more) that it is as if you are actually married.

In Ontario, and some other provinces, that is not the case.  The definition of “spouse” varies from jurisdiction to jurisdiction, and also from legislation to legislation.  In Ontario, under the Family Law Act, a “spouse” generally means either of two persons who are married to each other.  Under Part III relating to support, “spouse” includes persons who have co-habited in a conjugal relationship for three years, or in a relationship of some permanence if they are the natural or adoptive parents of a child, in addition to those who are married.

So even the same piece legislation makes distinctions about the definition of spouse, depending on whether you are talking about support or property division.  Generally, legislation dictates that common law spouses have no rights to property division but they do have rights to spousal support.

In Ontario, we look not only to the legislation, but also to case law when immersed in family litigation.  Recent case law at the Supreme Court of Canada addresses the rights of common law spouses with regard to property division.

Whether married or common law, you would be well advised to seek the advice of a family law lawyer, when facing possible termination of the relationship or when entering into a new relationship.  Most importantly, keep yourself informed, regardless of your circumstances.