Common-law in Ontario: when do you owe or receive spousal support?

Unmarried partners in Ontario can owe or receive spousal support if they lived together in a conjugal relationship continuously for at least three years, or in a relationship of some permanence as the parents of a child. Being entitled is only the first step: the court then looks at need, ability to pay and the effects of the relationship. Common-law partners do not, however, share in the equalization of net family property that applies to married spouses.

The support rules for unmarried partners are in Part III of Ontario's Family Law Act. For how spousal support works in general, see our page on spousal support.

How does a common-law support claim work, step by step?

In Toronto, a support-only claim can start at the Ontario Court of Justice location for your riding; our guide to which Toronto family court handles your case explains the choice. The disclosure forms are covered in which financial statement to file.

Who counts as a spouse for support?

For most of the Family Law Act, "spouse" means two people who are married to each other. For support, section 29 widens that definition to include two people who are not married to each other and have cohabited:

To "cohabit" means to live together in a conjugal relationship, whether within or outside marriage (section 1(1)). Whether a relationship meets that description, and when it started and ended, depends on the evidence, so keep records of when you moved in together and when you separated.

If you qualify, is support automatic?

No. Every spouse has an obligation to support themselves and the other spouse "in accordance with need, to the extent that he or she is capable of doing so" (section 30). A court decides whether support should be paid, how much and for how long, considering all the circumstances, including (section 33(9)):

• each partner's current and likely future assets and means;
• the ability of the partner asking for support to contribute to their own support, and the other's ability to pay;
• age and physical and mental health;
• needs, judged against the standard of living while they lived together;
• how long they lived together, and the effect on earning capacity of responsibilities taken on during the relationship;
• housekeeping, child care and other domestic work done for the family; and
• the effect on earnings and career development of caring for a child.

An order should recognize the partner's contribution to the relationship and its economic consequences, share the economic burden of child support fairly, help the partner become able to support themselves, and relieve financial hardship (section 33(8)). Conduct is generally irrelevant, unless it is so unconscionable that it amounts to an obvious and gross repudiation of the relationship (section 33(10)).

How is the amount worked out?

There is no fixed table for spousal support as there is for child support. The federal Department of Justice describes the Spousal Support Advisory Guidelines as suggesting ranges of support for spouses who are entitled; it says they are not law, but that judges often base their decisions on them. Our article on how spousal support is calculated covers the factors in more detail.

The court can order periodic payments for an indefinite or limited period, a lump sum, a transfer of property, support for a period before the order, or security for payment, among other things (section 34). The Ontario Court of Justice has narrower powers over lump sums and property than the Superior Court.

What do common-law partners not get?

• No equalization. Part I of the Family Law Act, which equalizes net family property, applies to married spouses. A property dispute between unmarried partners is brought in another way, such as a trust or unjust enrichment claim in the Superior Court.
• No statutory matrimonial home rights. The Part II rules that stop a spouse from selling or mortgaging the family home without consent also apply only to married spouses; see whether a spouse can sell or mortgage the family home without consent.
• No divorce. The Divorce Act applies only to married couples, so support between unmarried partners is always decided under the Family Law Act.

Child support and parenting are different: they do not depend on whether the parents were married.

Can a cohabitation agreement waive support?

Unmarried partners can make a cohabitation agreement about support and property (section 53), and if they later marry each other it becomes a marriage contract. But a court can set aside a support provision or waiver, even if the agreement says the court cannot, if it results in unconscionable circumstances, if the person giving up support qualifies for support out of public money, or if support under the agreement is in default (section 33(4)).

Is there a deadline to claim?

Ontario's Limitations Act, 2002 says there is no limitation period for a proceeding to obtain support under the Family Law Act (section 16(1)(c)). Other family claims do have deadlines; they are collected in the deadlines in an Ontario family case.

What changes the answer?

• How long you lived together, without a break. Section 29 requires continuous cohabitation for at least three years, unless you have a child together.
• Whether you have a child together. A relationship of some permanence with a child can qualify sooner.
• Need and ability to pay. The obligation is "in accordance with need", to the extent the other partner is capable (s. 30).
• What each partner gave up. Childcare, domestic work and career effects are listed factors (s. 33(9)).
• Any cohabitation agreement. It can deal with support, but a waiver can be set aside in the circumstances in s. 33(4).
• Conduct. Only conduct that is an obvious and gross repudiation of the relationship counts (s. 33(10)).

A worked example

For example, imagine partners in Toronto who lived together for five years without marrying. One stopped working to care for an elderly parent and the household, while the other's business grew. When they separate, the partner who stayed home claims spousal support. Because they cohabited continuously for more than three years, both are spouses for support under section 29. The court looks at the factors in section 33(9), including how the relationship affected the claimant's earning capacity, and may consider the ranges the Advisory Guidelines suggest. The claimant cannot ask for equalization of property, but could bring a separate trust or unjust enrichment claim in the Superior Court if they contributed to property in the other partner's name. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make?

1. Assuming support is only for married couples. Section 29 says otherwise.
2. Counting time apart as cohabitation, or forgetting that the three years must be continuous.
3. Expecting a share of the house through equalization. That remedy is for married spouses only.
4. Signing a cohabitation agreement without independent advice and full disclosure.
5. Not keeping evidence of when you moved in and when you separated.

What to do this week

1. Write down when you moved in together and when you separated, with proof such as leases or mail.
2. Gather your income documents and a budget of your current expenses.
3. List what each of you contributed, in money and in work at home.
4. Find any cohabitation agreement or other written terms.
5. If you have children, check how child support is calculated, because it is separate from spousal support.

Frequently asked questions

Does it matter whose name is on the lease or the house?

Not for entitlement to support. It can matter for a property claim, which for unmarried partners is not equalization.

Do we need a written agreement to have support rights?

No. The right to claim comes from the Family Law Act itself once section 29 is met. A cohabitation agreement can set terms, but a court can still set aside a support waiver in the situations listed in section 33(4).

Can a support order be changed later?

Yes. If there is a material change in either partner's circumstances, or new evidence that was not available before, the court can discharge, vary or suspend the order, and can deal with arrears (FLA, s. 37(2)).

What if we later marry each other?

A cohabitation agreement becomes a marriage contract if the partners marry each other (s. 53(2)), and as married spouses they then have equalization and matrimonial home rights as well.

Can support be ordered for a limited time?

Yes. The court can order periodic payments for an indefinite or limited period, or a lump sum, among other options (s. 34).

Can I get support for the time before the order?

Section 34 allows the court to order support for a period before the date of the order.

Can I talk about my case in Persian?

Yes. Consultations are available in English, Persian (Farsi) and French. Our page on what a Persian-speaking family lawyer in Toronto can do covers the questions families with ties to Iran ask most.

Sarbazevatan Law acts for partners claiming or responding to spousal support, in English, Persian (Farsi) and French. Call +1 (416) 628-2041 or reach us through the contact page.