Legal Resource Guide

faMily law a diffeRenT seT of CoMMon-law Rules By marg. Bruineman a marriage certificate is worth the paper it's written on. If you don't have one, and are living in a common-law relationship, you might be surprised to find you're living under a different set of rules than those who have formally tied the knot. If your relationship comes to an end, how you decide who gets what isn't as legally clear as it is for married couples. "When it comes to property, that's where it becomes difficult," says Kristy Maurina, who practises family law with Toronto law firm MacDonald & Partners LLP. Ontario's Family Law Act defines a spouse as someone involved in a marriage and their rights flow from that. It's that legislation that deals with property issues. The exception is for those who have been living together for at least three years or who are in a permanent relationship and have had children together. It also recognizes same-sex partners as spouses. So if non-married couples who have been living together for less than three years and have no children want to split, there are no clear rules for them to follow. A cohabitation agreement will go a long way to avoiding many of the problems that could occur. Without one, a legal battle could well follow. "If you live with somebody for two and a half years, you've got no rights," says family lawyer William Abbott. He suggests common-law couples draft a domestic contract or cohabitation agreement. While it could be dismissed as unromantic, he likens an agreement to wearing a seatbelt in the car: it might be a bit inconvenient, but you know it's going to protect you. An agreement is especially useful when it comes to dividing up property, outlining who gets what, and how much. These contracts can be updated to accommodate changing situations. A situation that could prove problematic for a common-law spouse is if one was previously married and has children from that marriage. If one partner passes away, the children from the earlier marriage may well end up with the estate, including the house. And the surviving, unmarried spouse could find him or herself homeless and with nothing. Abbott also warns that each province has its own legislation, and if you move, you are subject to those rules. He points to Quebec, which differs from Ontario in that it doesn't recognize spousal support in common-law relationships. The other option for someone outside of a formal marriage to secure their property rights is to buy property together so the partners are joint owners, adds Gary Joseph, also of MacDonald & Partners. There is also the legal concept of unjust enrichment, which allows the argument that if you are not listed as the owner of the house in which you both live but have invested money in it, like renovations, then you are owed. That, however, could be hard to prove and difficult to quantify. It involves detailed analyses of each spouse's contributions to the property and examines whether one spouse benefits at the expense of the other. The Divorce Act is also useless to common-law spouses looking for support after a breakup because it only applies to legally married couples. "For common-law spouses, property rights are restricted and much less generous than a married spouse and are not statutorily granted," says Joseph. "I sincerely believe that, eventually, we'll get around to amending these statutes to recognize all relationships… that relationships with permanence will be the same as married couples. But we're a long way from that." The more things that are shared in a common-law relationship, the more potential there is for an argument at the end. Maurina suggests the best approach is to simply keep things separated, even bank accounts. That way, everything is clearly defined. When it comes to children of common-law spouses, every parent has an obligation to provide support for an unmarried, minor child or enrolled in school full time. The Children's Law Reform Act also deals with common-law parents' rights of custody and access to their children. No matter what the relationship, married or common law, the No. 1 rule is the best interests of the child trump everything else. 11

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