When the law doesn’t match the reality of relationships: Why Ontario needs to reform property rights for common-law relationships
More Ontarians than ever are choosing to build their lives in common-law relationships. Yet when those relationships end, the law treats common-law partners very differently from married spouses, particularly when it comes to dividing property and deciding who can remain in the family home.
For many people, this comes as a surprise. Research shows that most Ontarians do not realize that common-law partners do not automatically have the same property rights as married spouses. Many assume that after living together for years, raising children, or sharing finances, they will have the same legal protections if the relationship ends. In Ontario, that is simply not the case.
Our new report, When the Law Doesn’t Match the Reality of Relationships: Extending Matrimonial Property Rules to Common-Law Partners in Ontario, examines this significant gap in Ontario law and the impact it has on separating families, particularly survivors of intimate partner violence (IPV).
A Legal Gap with Real Consequences
Married spouses in Ontario benefit from legislation that provides a clear framework for dividing property accumulated during the marriage. They may also ask the court for exclusive possession of the matrimonial home, allowing one spouse to remain in the home after separation, even if they are not the owner.
Common-law partners do not have these same protections.
Instead, they must rely on complicated equitable claims to seek a share of property. These claims are expensive, legally complex, fact-specific, and often have unpredictable outcomes. Common-law partners also cannot apply for exclusive possession of the family home under Ontario’s Family Law Act, even in situations involving IPV where there are safety concerns with ongoing cohabitation.
For survivors of IPV, these legal differences can have devastating consequences. The report examines how the current legal framework can compound existing barriers to safety, financial security, and access to justice for survivors of IPV after separation.
Ontario Is Falling Behind
Ontario is increasingly the exception rather than the rule.
Several Canadian provinces and territories have already extended statutory property rights to common-law partners after a specified period of cohabitation, while preserving the ability for couples to opt out through domestic contracts if they choose.
Ontario, however, continues to rely on a legal framework that no longer reflects the realities of relationships in the province.
Our Recommendations
In our new report,
When the Law Doesn’t Match the Reality of Relationships: Extending Matrimonial Property Rules to Common-Law Partners in Ontario, we recommend four reforms to better protect common-law partners, particularly survivors of IPV. These include:
- Extending Ontario’s matrimonial property regime to common-law partners
- Extending exclusive possession rights to common-law partners
- Increasing public legal awareness so people understand their rights
- Implementing mandatory education on intimate partner violence for legal professionals
Family law should reflect how people actually live, not just how the law has traditionally categorized relationships. Together, these reforms would help reduce unnecessary litigation, improve access to justice, increase legal certainty, and better reflect the realities of relationships in Ontario today.