119     Common law rights upon break up

Unless you have signed a cohabitation agreement, common law spouses generally have fewer legal rights than married spouses upon break up of a relationship. Under the Ontario Family Law Act, a man and a woman are living in a common law relationship if they have been living together intimately for at least three years or if they have been living together for less time but they have had a child together.

Rights common law spouses do not have

There are two important rights which married spouses have if they separate which common law spouses do not have. First, common law spouses do not each have an equal right to live in the family home. Secondly, common law spouses do not have an automatic right to equalize their net family property acquired during their relationship. In most cases, both the home and other property go to the person who is the owner. Each person usually keeps everything they personally own and nothing more.

Where one or both of the common law spouses has made a significant contribution to the property of the other, there may arise a right in respect of property based on principles of trust or unjust enrichment.

Generally speaking, the longer the relationship between unmarried cohabitees or common law partners the more likely there is a remedy. In some circumstances, it may be possible to be given the right to live in the family home or the right to divide property. This involves going to court and convincing a judge that you made a significant contribution to the home or to the property. It is best to consult a lawyer as this is a complex area of law.

Rights common law spouses do have

Although there are some rights that married spouses have that common law spouses do not have, common law spouses do have some important rights under the law. These include child support, spousal support and rights to CPP pension credits.

Custody of children and child support

Common law spouses have the same rights and obligations as married spouses to care for children. This includes rights to custody of children and obligations to financially support children. If the parents cannot decide on who will have custody of the children, the courts will decide based on what is in the children's best interest. If the parents cannot agree on child support, a court can order support payments based on the new Federal and Provincial Guidelines.

Spousal support

Common law spouses may also have rights to financial support as long as a claim is made within two years of separation. The court will look at whether one spouse needs to be financially supported and whether the other spouse has the ability to pay. If both spouses are employed and earning a similar amount of money, the court will generally not order one spouse to support another.

Right to spouse's CPP credits

Common law spouses also have a right to each other's Canada Pension Plan credits. Most people earn these credits while they are working. When you and your spouse separate, the credits earned by both of you while you were together are divided evenly. For more information you can call the Human Resources Development Centre office in your area. The telephone number is listed in the Blue pages of your telephone book.

Separation Agreements

When common law spouses separate, they can deal with all the issues of their separation by entering into a formal separation agreement. This agreement can set out how property will be divided, who the children will live with and how much child support and spousal support will be paid. Although it is possible to write your own separation agreement, you should consult a lawyer to make sure that both you and your common law spouse understand your legal rights. A lawyer can also make sure that your separation agreement is clear, complete and legally binding.

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