Over the past few decades, cohabiting in unmarried partnerships has become increasingly common across Canada. However, common law relationships in Canada still differ from traditional marriages legally in important ways. Educating yourself on provincial and territorial regulations empowers you to protect your rights proactively.
What is a Common Law Relationship in Canada?
A common-law relationship is established when two people live together in a conjugal partnership without legally marrying. All Canadian jurisdictions recognize these unions after couples meet specific cohabitation duration requirements. However, common-law couples lack many automatic legal protections granted to married spouses.
Each province and territory defines common law status differently, so cohabiting couples must learn the relevant regulations. Family law falls under provincial jurisdiction, so property division, inheritance rules, separation procedures, and partner rights vary by region.
Understanding key criteria and differences allows common-law couples to safeguard their interests through proper legal planning.
Criteria for Establishing Common Law Status in Canada
Every Canadian jurisdiction sets criteria regarding the minimum cohabitation period required to constitute a common law relationship. The definitions also differ depending on the legal context, such as taxation, estate planning, division of assets after separation, and eligibility for government benefits.
Federal Common Law Relationship
For federal tax purposes, the Canada Revenue Agency (CRA) recognizes couples as common law after cohabiting continuously for 12 months. The only exception is if the couple has a biological or adopted child together, in which case claiming common law status on tax returns is allowable immediately. These same criteria apply to immigration sponsorship applications and other federal government matters.
Provincial and Territorial Criteria for Common Law Status
Provinces and territories have authority over legal issues relating to common law partnerships within their jurisdictions. Areas like property rights, inheritance rules, separation procedures, and asset division all require adhering to provincial or territorial family law acts. Depending on the region, the minimum cohabitation duration required to reach common law status ranges from one to three years.
Some provinces also permit couples to formally register their partnerships with the government after meeting the relationship duration requirements. Registering grants access to the same legal spousal rights as married couples regarding property, inheritance, spousal support, and other areas.
Common law in British Columbia
A couple is considered common law in British Columbia after two years of continuous cohabitation. They can also be considered common law immediately if they have a child together. Unmarried couples in BC can enter into a cohabitation agreement outlining their rights and responsibilities during and potentially after the relationship.
Full review: Common Law in British Columbia
Common law in Alberta
After three years of continuous cohabitation, Alberta recognizes common-law couples under the Adult Interdependent Relationships Act. Having a biological or adopted child together also meets the requirements for common law status, as does entering into a valid cohabitation agreement. Partners in a common law relationship have the right to claim support from each other after separation.
Full review: Common Law Relationships in Alberta
Common law in Saskatchewan
Saskatchewan requires two years of continuous cohabitation to be considered a common-law couple. Saskatchewan’s family law treats unmarried spouses equally to married couples regarding property division, support, and inheritance if a relationship ends after the two-year mark.
Full review: Common Law Relationship in Saskatchewan
Common law in Manitoba
Manitoba couples must cohabit continuously for three years to qualify as common law under the Family Property Act. However, having a child together reduces the requirement to 1 year of cohabitation. Partners can also formally register their relationship after meeting the duration requirement.
Common law in Ontario
Ontario also has a three-year continuous cohabitation requirement for common law couples under the Family Law Act. This is lowered to one year if the couple has a child together. Married and common-law spouses have identical property rights in Ontario.
Common law in Quebec
Quebec couples must cohabit continuously for one year to be considered common law under the Quebec Civil Code. The duration is also one year if the couple has a child together. However, common law partners do not have automatic inheritance rights.
Common law in New Brunswick
In New Brunswick, common law status is reached after three years of continuous cohabitation under the Marital Property Act. Couples who have a child together also meet the requirements at that point. Registered common-law couples have expanded rights around property and inheritance.
Common law in Nova Scotia
The cohabitation duration required to qualify as common law in Nova Scotia is two years of continuous living together under the Matrimonial Property Act. However, a judge determines support and property division based on the specifics of each case.
Common law in Prince Edward Island
Prince Edward Island requires three years of continuous cohabitation under the Family Law Act before recognizing couples as common law. However, there is no formal registration system for common-law couples.
Common law in Newfoundland and Labrador
Newfoundland and Labrador couples must cohabit continuously for two years to be considered common law under the Family Law Act. If the couple has a child, the required duration is reduced to 1 year.
Common law in Yukon
Under the Family Property and Support Act, Yukon’s cohabitation duration requirement for common law status is two years of continuous living together. However, common law property and inheritance rights regulations differ from those of other provinces.
Common law in Northwest Territories
In the Northwest Territories, two years of continuous cohabitation meet the requirement for couples to be considered common-law partners and receive associated spousal rights under the Family Law Act. After two years, common law grants couples rights equal to married spouses.
Common law in Nunavut
Nunavut also recognizes couples as common law under the Family Law Act after they have cohabited continuously for two years. However, Nunavut’s property division laws for common-law couples differ from those of other provinces and territories.
When a registered or unregistered common law relationship ends, the union legally dissolves immediately upon the partners ceasing to live together as a couple. However, certain obligations like child support or contractual promises in a cohabitation agreement remain legally binding even after physical separation.
Common Law Partner Rights and Responsibilities in Canada
Canadian common law regulations grant fewer automatic legal safeguards to unmarried couples than the protections extended to married spouses. However, the legislation aims to balance the rights of Canadian common law and married couples in certain areas, like childcare, taxation, and access to government benefits. If common-law relationships dissolve, significant gaps remain in other realms, such as asset division, inheritance entitlements, and spousal support.
Division of Property
This is the area with the most significant differences from marriage. Most jurisdictions mandate an equitable division of shared “matrimonial assets” acquired during the marriage, with each spouse presumptively entitled to a 50% share, absent a prenuptial agreement to the contrary.
In contrast, there is no automatic right to an equal division of property. The basic rule is: what is in your name is yours, and what is in your partner’s name is theirs. Absent a cohabitation agreement stipulating division of shared property, common law partners hold minimal rights to assets solely owned by the other partner when separating.
If you contributed significantly to the value of an asset in your partner’s name (e.g., you paid for renovations on a house they own), seeking fair compensation requires initiating legal action and proving unjust enrichment.
The exception: In some provinces like BC or SK, the law has evolved to treat common-law couples more like married couples regarding property. In BC, for example, family property and debt acquired during the relationship are generally divided equally upon separation.
Spousal Support Rights
All Canadian common-law partners can claim spousal support payments from former partners to help cover living expenses after the relationship’s dissolution. A partner seeking support must demonstrate entitlement based on factors like:
- The length of the relationship.
- The roles each person took on (e.g., one partner staying home to raise children).
- The financial needs and means of each partner post-separation.
The regulations governing eligibility criteria, support amount calculation formulas, and the duration of support awards vary significantly across provinces and territories.
Some jurisdictions allow either separated partner to apply for support indefinitely, while others impose strict application deadlines ranging from one to three years post-separation. Unlike child support calculations, which always prioritize children’s best interests, spousal support awards are not automatic and are determined on a case-by-case basis.
Without a spousal support agreement, common law partners in Canada risk inadequate support or having their applications denied entirely if submitted beyond the deadline. They must accept whatever support the court mandates rather than agreeing to suitable terms upfront. And if the relationship lasted under the threshold duration, they may be prevented from seeking spousal support entirely, barring special circumstances.
Inheritance Rights
If your common-law partner dies without a will (intestate), you have no automatic right to inherit their estate in most provinces. In such cases:
- The estate would pass to the legal next of kin (children, parents, siblings).
- You, as a common law partner, inherit nothing by default in most jurisdictions unless named as beneficiaries in a will. This differs from a married partner, who automatically inherits predetermined shares of an estate under provincial and territorial intestacy laws.
To receive anything, you would have to make a court application as a “dependant” under provincial succession law. This is a legal proceeding, not a guaranteed inheritance. The only way to guarantee inheritance rights for a common law partner is to name them in a valid will.
Parenting Rights and Responsibilities
Under Canadian law, common law status does not affect legal parenting rights or obligations. Both parents have the same rights and responsibilities regardless of whether they are married or common-law. Decisions about custody (parenting time), access (contact), and child support are based on the best interests of the child.
Medical and Financial Powers of Attorney
A key legal distinction between married and common law couples in Canada is that unmarried partners cannot automatically make healthcare or financial decisions for incapacitated partners. The default is that medical personnel and financial institutions defer to provincial hierarchies, which rarely rank common law partners highly.
Creating powers of attorney allows common-law spouses to circumvent the default order of decision-makers. These legal authorizations empower partners to:
- Access medical records and speak with doctors
- Provide informed consent for treatments
- Manage bank accounts and investments
- Conduct real estate transactions
- File taxes and transact other business
Drafting comprehensive powers of attorney enables common-law couples to have agency over each other’s care and affairs, just like married spouses. This avoids prolonged legal interventions to gain control in healthcare or financial emergencies.
Taxation and Government Benefits
The Canada Revenue Agency treats common law and married couples identically for federal income tax purposes. Canadian common law couples must begin filing joint tax returns after cohabiting for 12 consecutive months or having a child together. Failing to report common law status constitutes tax fraud.
Provinces and territories also extend equal access to common law partners in Canada regarding provincially regulated government benefits. These include health insurance, prescription drug plans, social assistance, disability support programs, workers’ compensation, and other income-tested benefits. Both partners’ total household incomes determine eligibility thresholds and payment rates.
Proving Your Common Law Relationship
If your relationship status is disputed, you may need to provide evidence to a court or government body. No single factor is decisive; a judge will look at the complete picture. Useful evidence includes:
- Shared Residence: Lease agreements, property deeds, utility bills in both names.
- Financial Interdependence: Joint bank accounts, joint credit cards, naming each other as beneficiaries on insurance or investment plans.
- Public Representation: How you presented yourselves to family, friends, and the community (e.g., social media, invitations addressed to you as a couple).
- Children: Having children together is strong evidence of a conjugal relationship.
- Statutory Declarations: Signed statements confirming your relationship status.
How to Protect Your Common Law Rights
While cohabiting partners lack certain automatic protections relative to married couples, proactive legal planning can help secure your interests:
Cohabitation Agreement – This is the most important document for any common-law couple. This legally binding contract identifies separate and shared property and stipulates division of assets, spousal support, and debt repayment if the relationship ends, providing control and minimizing disputes.
Wills – As noted above, a will is the only way to guarantee your partner will inherit from your estate. Without one, they may inherit nothing by default under provincial intestacy laws.
Powers of Attorney – Appointing partners as attorneys-in-fact facilitates healthcare and financial decisions later on. Otherwise, hospitals and banks often deny the decision-making agency of common law spouses in Canada.
Property Documentation – Titling shared property jointly and retaining records demonstrating shared financial responsibility bolsters claims to split assets equitably if relationships dissolve.
Relationship Registration – Some provinces allow the registration of common law partnerships with the government after meeting cohabitation duration requirements, conferring spousal status.
The Evolving Legal Landscape for Common Law Couples in Canada
While gaps persist between the rights of married and unmarried couples, the legal landscape governing common law relationships in Canada continues evolving in a positive direction. Both social perceptions and relationship recognition legislation exhibit increasing acceptance and more equitable treatment of cohabiting couples.
Public opinion polling reveals dramatically rising approval of common law unions over recent decades. Correspondingly, courts now frequently interpret provincial and territorial laws concerning property division, spousal support and other areas more even-handedly regarding Canadian common law couples’ rights and entitlements.
Many provinces also now enable couples to formally register their domestic partnerships with the government after satisfying the cohabitation period requirements. Registration confers full legal spousal status to registered common-law couples, with associated rights and protections.
Provincial legislatures continue amending intestacy inheritance laws to better provide for surviving common-law partners and ease legal tests for unmarried partners to prove cohabitation asset contributions justifying property claims post-separation. While differences with married couples remain, the trend promotes greater consistency and fairness.
Conclusion: Plan for the Life You’re Building
Choosing to be in a common-law relationship is a valid and popular choice in Canada. However, the law has not fully caught up to this social reality in many parts of the country. Relying on default provincial rules, especially concerning property, is a significant risk.
By understanding the law in your province and taking proactive steps, including creating a cohabitation agreement, writing wills, and appointing powers of attorney, you can design a legal framework that reflects the reality of your partnership. This foresight ensures that both partners are protected, providing peace of mind and allowing you to focus on building your life together.
Frequently Asked Questions
How long must a couple cohabit to be considered common law in Canada?
The required duration varies regionally but typically ranges from 1 to 3 years of continuous cohabitation. Some provinces let couples formally register sooner to gain spousal rights. Having children together also expedites attaining common-law status.
What property rights do Canadian common-law couples have when separating?
Unlike married couples, common law partners lack automatic equal rights to split property not jointly owned. Individuals often must litigate without a cohabitation agreement stipulating asset division to gain compensation for contributions.
Can common-law couples jointly adopt children in Canada?
Yes, common-law couples can and do jointly adopt children in all Canadian provinces and territories. Certain regions mandate meeting minimum cohabitation period requirements beforehand. Adoption regulations now make no distinction based on marital status.
If my common-law partner in British Columbia dies without a will, will I inherit anything?
No. Under BC's intestacy laws, you won't automatically inherit anything unless expressly named as a beneficiary in the deceased partner's will. You would need to petition the court seeking entitlement to part of the estate.
What is the process for ending a common law relationship in Canada?
There is no formal legal process. You simply begin living separately and cease cohabitating as a couple. However, any obligations created in a cohabitation agreement or related to childcare would remain legally binding even after physically separating.
Where can I find helpful resources and advocacy groups for Canadian common-law couples?
Legal clinics like Justice Net offer useful guidance on common law rights across Canada. Family law attorneys can also review your specific situation. Many general support and advice groups for common-law couples exist online as well.
How do I determine if I qualify as common law for Canadian tax purposes?
You must begin submitting joint tax returns federally after cohabiting with your partner for 12 consecutive months. The same requirement applies if you and your partner have a biological or adopted dependent child together.
Are alimony payments required after the separation of common-law couples in Canada?
Canada uses the term spousal support rather than alimony. Payments may be owed temporarily after a common law separation in Canada, depending on factors like relationship length and financial need. It is not an automatic entitlement.
Can I make medical decisions for my incapacitated common-law partner in Canada?
Normally no, unless your partner has granted you power of attorney for personal care. Otherwise hospitals follow a hierarchy, usually consulting closest relatives first. A court may appoint you as guardian later.
What constitutes proof of a common law relationship in Canada?
Documents like shared rental agreements, utility bills, bank accounts, loan applications, insurance policies, and statutory declarations of union status can demonstrate evidence of cohabitation and financial interdependence.
Can a common-law partner in Canada make funeral arrangements?
Normally, yes. Provincial laws authorize spouses, either married or common law, to make funeral arrangements in Canada. However, disagreements between partners and blood relatives may require legal intervention.
