Common-Law Separation Rights in Canada

Common-law relationships have real legal obligations

A common misconception is that common-law partners have fewer rights and obligations than married couples. That is partly true for property division, but for child support and spousal support, the rules are largely the same.

If you are ending a common-law relationship, you need to understand what you are entitled to and what you owe. The answer depends on your province, the length of your relationship, whether you have children, and your financial circumstances.

What counts as "common-law"?

The definition of a common-law relationship varies depending on the legal context:

Tax and benefits definition

For tax and benefits purposes (CRA), the federal government considers you common-law after one year of cohabitation in a conjugal relationship, or if you have a child together. This is the threshold for tax filing, CPP sharing, and government benefits like the Canada Child Benefit.

Family law definition (spousal support and property)

For spousal support and property rights, provincial family law governs, not the Divorce Act (which applies only to married couples). Each province sets its own threshold:

Child support: same rules as married couples

If you have children, child support obligations are identical whether you were married or common-law. The Federal Child Support Guidelines apply in the same way:

• The base amount comes from the same provincial tables
• Shared custody (40%+ parenting time) uses the same set-off formula
• Section 7 special expenses are shared proportionally by income
• The same income thresholds and discretionary rules apply

There is no distinction in the law. A child's right to support does not depend on whether their parents were married.

Spousal support: SSAG applies

The Spousal Support Advisory Guidelines (SSAG) apply to common-law couples. The calculation formulas are the same as for married couples:

• Without children: 1.5% to 2% of the income difference per year of cohabitation
• With children: INDI-based formula (40% to 46% of combined net disposable income)
• Duration: tied to the length of the relationship
• Rule of 65: applies based on age plus years of cohabitation

The main difference is entitlement. For common-law couples, establishing entitlement to spousal support may require demonstrating:

• Economic disadvantage from the relationship (career sacrifice, caregiving)
• Economic need and the other partner's ability to pay
• A cohabitation agreement (if one exists)

In shorter common-law relationships (under 3 years, no children), entitlement to spousal support is less likely to be established. In longer relationships, especially with children, entitlement is treated similarly to marriage.

Property division: this is where it differs

Property division is the area where common-law and married couples are treated most differently, and the rules vary significantly by province.

Provinces with equal property rights for common-law partners

British Columbia (after 2 years of cohabitation) and Saskatchewan (after 2 years) provide common-law partners with essentially the same property division rules as married couples. Assets and debts accumulated during the relationship are divided equally.

Provinces with limited or no automatic property rights

Ontario is the most notable example. Common-law partners in Ontario have no automatic right to an equal division of property, regardless of how long they lived together. To claim a share of a partner's property, a common-law partner must bring a claim based on unjust enrichment or constructive trust, which requires proving that they contributed to the acquisition or improvement of the property.

Quebec provides no property or support rights to common-law (de facto) partners under provincial law. This is a deliberate policy choice in Quebec's Civil Code.

The practical impact

If you are a common-law partner in a province without equal property rights:

• You may still be able to claim a share of specific assets through unjust enrichment claims
• You should document your financial contributions to shared assets during the relationship
• A cohabitation agreement (signed before or during the relationship) can provide contractual property rights that the law does not provide automatically

What to do when a common-law relationship ends

1. Calculate support obligations first. Child support is straightforward (same guidelines as married couples). Spousal support depends on the length of the relationship and the circumstances, but the SSAG provides a framework.

2. Understand your province's property rules. This is the area with the most variation. Know whether your province provides automatic property division for common-law partners, or whether you need to take additional steps.

3. Consider a separation agreement. Even though there is no divorce to file, a written separation agreement is essential. It documents what was agreed, provides certainty, and can be enforced.

4. Get legal advice if property is significant. If you own a home together, have joint debts, or one partner contributed significantly to the other's assets, the property question may require legal advice specific to your province.

5. Do not assume you have no rights. Even in provinces without automatic property division, the law provides mechanisms to address unfairness. And child support and spousal support rights apply regardless of property rules.

No divorce needed

Common-law couples do not need a divorce to end their relationship. There is no court order required. The relationship ends when you stop cohabiting with the intention that it is over.

However, child support and spousal support obligations arise from the separation itself, not from a court order. If you have children or a significant income gap, support obligations exist whether or not you have a written agreement or court order. A separation agreement simply makes those obligations clear, specific, and enforceable.