When is a Common Law Partnership ‘Official’?

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  • July 21, 2016

There is great confusion about common-law partnerships. They are a distinct domestic household union recognized by family law courts including the Supreme Court of Canada. Common-law partnerships are not a subset of being married, however they share some elements in common. There is no distinction between same-sex or opposite sex common-law partnerships.

From the nationwide 2011 census, Statistics Canada confirms that 17% of Canada’s couples enjoy a common-law relationship. Of that amount, 3% are same-sex partnerships. Canadians recently completed a new nationwide census and I suspect that the survey will demonstrate the total number of common-law partnerships is significantly higher today.

Essential elements of a common-law relationship

The need to prove whether a couple have established a common-law relationship relates to qualifying for statutory or legislated rights such as the sharing of value of certain types of property or for a benefit enjoyed by their partner. Examples of both federal and Ontario statutes are listed below.

It is interesting to note that some statutes’ definitions of common-law partnerships include a requirement of cohabitation and a conjugal nature of the relationship, while others simply require cohabitation is an element. Black’s Law Dictionary defines cohabitation as

Living together; living together as husband and wife. Cohabitation means having the same habitation. not a sojourn, a habit of visiting or remaining for a time; there must be something more than mere meretricious intercourse. http://thelawdictionary.org/cohabitation/

Here are the critical elements constituting a common-law relationship and the setting right of some popular myths.

  1. Language: Common-law partners may also be referred to as ‘spouses’. Family law legislations uses the term ‘spouse’ with some clarifications. Check the definitions sections throughout a statute (as there may be more than one definitions section in the same legislation) and the associated Regulations as well as in health benefit plans, pension plans, and all documents granting benefits and rights programs to ensure that the provisions in the document applies specifically to common-law partners. Note that Revenue Canada reserves the term ‘spouses’ for married couples only.
  1. There is no formal legal documentation or registration with a government agency upon commencement of cohabitation. You will be required to identify the nature of your relationship as “living common-law” on your annual filing of your income tax return to be able to file for certain tax benefits, such as the Canada Child Benefit if there are children or credits such as GST/HST credit or for contributing to your common-law’s spouse’s RRSP. http://www.cra-arc.gc.ca/E/pbg/tf/rc65/rc65-16e.pdf The form must be filed with CRA at the end of the month in which your marital status changed.
  1. They share a physical residency. The residence is referred to as a Family Home whereas a Matrimonial Home relates to married couples.
  1. There is a sexual and personal relationship.
  2. There is no minimum duration which through the passage of time dictates that a couple residing together are now formally a common-law partnership. However, duration of the shared physical residency for the purposes of meeting a statutory requirement to qualify to receive a statutory benefit is generally for a period of not less than one year. You’ll need to confirm that entitlement by reading the specific statute or legislation relating to the benefit you are seeking to receive. Enrollment in a partner’s employment benefit plan or pension plan, for example, may require that the residency be of a continuous, uninterrupted period of one year or more.
  1. If there is a legislative requirement for the existence of a ‘conjugal relationship’ as part of the definition of common-law partnership to trigger the application of certain statutory rights then the relationship shares similar traits to a marriage such as fidelity, shared household responsibilities; and an actual or implied economic or financial arrangement.
  1. If there are children of the relationship, then the relationship may be considered to be one of some permanence and the requirement of a one year duration may not apply. See below Family Law Act R.S.O. 1990, C. F.3 Part III Support Obligations
  2. Some employment benefit plans declare a waiting period before an employee may designate or register a common-law partner entitling them to receive spousal benefits under the plan to confirm that validity of the relationship. There typically is an immediate entitlement for married spouses to enroll for plan coverage.
  1. Upon termination of the relationship, there is no formal documentation or deregistration required to proclaim that you are “legally” separated. In Canada, married spouses have a no-fault divorce being the ‘breakdown of the relationship.’ This is not a required declaration for common-law spouses as there is no legislated termination process equivalent to a divorce order.

You will need to file a Marital Status Change Form with Revenue Canada indicating that you are “separated.” There is no apparent timeline from when self-identification can be changed to ‘single’ status. This document provides for other automatic changes unless Revenue Canada is otherwise notified   http://www.cra-arc.gc.ca/E/pbg/tf/rc65/rc65-16e.pdf

  1. There is no legal obligation to execute a domestic separation agreement. The choice to enter into one is a voluntary option of the common-law spouses. Contact a family law lawyer to learn whether such a domestic contract is appropriate for your circumstances.
  1. There is no legal requirement to share in the value of the property acquired over the course of the relationship. This can be managed by entering into a cohabitation agreement prior to or during shared residency together. Receive independent comprehensive legal advice given the future looking nature of these contracts.

Statutory Definitions of Common-law Partners Differ

Under Canadian federal legislation, applicable across the country, the definitions of common- law partnership include a one-year conjugal cohabitation.

  • Sampling of Federal legislation:
  • Pension Benefits Division Act SC 1991., c. 46 Sch.II

Common-law partner means a person who establishes that the person is cohabiting with a member of a pension plan in a relationship of a conjugal nature, having so cohabited for a period of at least one year

  • Old Age Security Act, R.S.C., 1985, c. o-9

Common- law partner, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited with the individual for a continuous period of at least one year. For greater certainty, in the case of an individual’s death, the “relevant time” means the time of the individual’s death.

  • Sampling of Provincial Legislation:

In the domestic context, the predominant legislation is the Family Law Act which, among other matters, deals with financial support for spouses and children. The Succession Law Reform Act is another domestic issues statute which, in part, deals with certain implications upon the death of a spouse in a common-law relationship.

You will note that the duration of the relationship extends to three years in the event that the common-law partner claims financial support of the other upon the termination of the relationship or against the estate of deceased partner prior to the breakdown of the partnership.

  • Family Law Act R.S.O. 1990, C. F.3 Part III Support Obligations

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”)

The Family Law Act provides for a property sharing scheme, the equalization of the value of net worth of each married spouse. There is no equivalent statutory scheme for common-law spouses.

  • Succession Law Reform Act, RSO 1990, C. S26 Part V Support of Dependants

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; and

“spouse” means a spouse as defined in subsection 1 (1) and in addition includes either of two persons who,

(a) were married to each other by a marriage that was terminated or declared a nullity, or

(b) are not married to each other and have cohabited,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

  • Lorisa Stein is a senior family law lawyer highly experienced in advising clients on common-law partnership issues in Ontario. To schedule a confidential consultation, please fill out a request on the contact page, call her on her direct line (416) 596-8081 or email lorisa@lorisastein.com.
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