Ontario common-law spouses should have the same rights as married couples, family lawyers say

Some family lawyers in Ontario are calling for changes to provincial legislation that treats people living common-law differently from married couples when their relationships end.

While Ontario's Family Law Act states all property acquired by a couple during marriage must, in all but a few exceptional circumstances, be split evenly if they divorce, that provision does not apply to common law couples.

As a result, people in common-law relationships in this province often have to resort to the time-consuming and expensive process of going to court to get their fair share of property.

Other provinces have amended their laws to grant common-law spouses who are ending their relationships the same property rights as married couples.

The calls for Ontario to change come as new census data shows 23 per cent of Canadian couples are living common-law, the highest rate among the the G7 countries.

Toronto-based family lawyer Ken Nathens says the discrepancy in rights between common-law and married couples is an important issue and he wants to see the provincial government move forward on changing the legislation.

"What would be a simple thing for married couples — just divide the house 50-50 — becomes a three- or four-day court battle for common-law couples, which is very expensive and certainly doesn't help the parties to move on." Nathens told CBC Radio's Ontario Today.

"If you're common law and one spouse owns the house to the exclusion of the other, the second spouse has to prove all of his or her contributions to that property, so you get into crazy litigation," Nathens said.

Family lawyer Russell Alexander also says the property-division laws that apply to married couples in Ontario should apply to common-law spouses.

"Fairness would require it, in my view. I think the legislature should step in," said Alexander, founder of Russell Alexander Collaborative Family Lawyers.

"Common-law couples [in Ontario] don't enjoy those same legislative rights and obligations, so they need to turn to the courts when they get separated to try to get what they think is their fair share of property," Alexander told Ontario Today.

He gave credit to courts for rendering decisions that fairly distribute property between common-law spouses when they divorce, but he believes the provision should be made clear in legislation.

Emma Katz, an associate with Kelly D. Jordan Family Law in Toronto, says many people in Ontario have the misconception that a common-law partnership means the same thing as marriage when it comes to property rights.

Ontario's legislation makes the division of property between married spouses when they split up much less complex, more clear cut and easier to settle without lengthy litigation than for common-law spouses, Katz told CBC Radio's Metro Morning.

"We have quite an arbitrary scheme [in Ontario]," Katz said. "You have some people that have been in relationships for over 30 years and not married, and they're not subject to the same rights. So I think it is time to have a discussion about how and when [common-law] couples should be sharing their wealth."

B.C. changed its law in 2013 to mandate a 50-50 split of property assets among common-law couples, in large part to cut down on the time those couples had to spent in court, said Denise Whitehead, chair of sexuality, marriage and family studies at St. Jerome's University at the University of Waterloo.

Whitehead said it would be good for Ontario's family law to be uniform in its approach to married and common-law couples to simplify the process and to ensure that all spouses are aware of their rights and obligations.

CBC News asked Attorney General Doug Downey on Friday whether the government is reviewing the Family Law Act or willing to change its provisions on property rights for common-law spouses.

WATCH | How B.C. changed its divorce laws to better protect common-law spouses

In response, Downey's press secretary Natasha Krstajic issued a statement laying out how the property provisions in the current law only apply to married spouses.

"This reflects the reality that common law relationships vary widely, and are entered into in a wide range of circumstances," said Krstajic.

She added that the government introduced some legal reforms in 2020 to "make it easier, faster and more affordable for individuals and families to resolve family legal matters." However, those did not address the  provisions on property rights for common-law spouses.

In 2011, the then-Liberal government tweaked Ontario's rules to give divorcing couples mediation options and require them to attend an information session on alternatives to going to court.