Spousal Support for Common Law Ontario

When common law relationships end in Ontario, many individuals are surprised to learn that they may have rights and obligations regarding spousal support, despite never having been legally married. Understanding these rights is essential for both partners as they navigate the separation process and plan for their financial futures. This article explores the legal framework for spousal support among common law couples in Ontario, clarifying eligibility criteria, determination factors, and practical considerations.

Eligibility for Spousal Support in Ontario

Unlike divorce situations where spousal support is governed by the Divorce Act, spousal support for common law couples falls under Ontario’s Family Law Act. This provincial legislation creates specific eligibility requirements that must be met before support can be awarded.

Definition of a Common Law Relationship

In Ontario, for the purposes of spousal support, you are considered common law spouses if:

• You have cohabited continuously for a period of at least three years, or
• You have a relationship of some permanence and are the parents of a child together

This definition is specifically for spousal support purposes and may differ from definitions used for other legal matters such as income tax, pensions, or inheritance rights. The key factors courts examine to determine if a relationship qualifies include:

• Whether you lived together under the same roof
• Sexual and personal behavior toward each other
• Services provided to one another
• Social activities and perception as a couple
• Economic support and interdependence
• The division of caregiving responsibilities for children 
• The common intention regarding your relationship

It’s important to note that “living together” doesn’t necessarily mean full-time cohabitation without any interruptions. Courts recognize that work obligations, travel, or other circumstances might cause temporary separations while the relationship remains intact.

Married vs. Common Law Spouses

There are significant differences between married and common law relationships in Ontario:

Property Division:

• Married couples: Automatic right to equalization of net family property
• Common law couples: No automatic right to property division; must make claims based on constructive trust or unjust enrichment/joint family venture 

Matrimonial Home:

• Married couples: Equal right to possession of the matrimonial home regardless of ownership
• Common law couples: No special rights to the home; general property ownership rules apply

While married spouses have automatic rights upon separation regarding the matrimonial home  and equalization of net family property, common law partners must rely on different legal principles for property claims. However, when it comes to spousal support, the principles applied to determine entitlement, amount, and duration are largely the same once eligibility is established.

Determining Entitlement For Spousal Support

Not every common law partner is automatically entitled to spousal support upon separation. The courts look at several factors to determine whether support should be awarded.

Assessment of Spousal Support Entitlement

The entitlement to spousal support is found in one or more of these grounds:

Compensatory Basis: Compensatory entitlement is founded in the idea that a spouse needs to be “compensated” for something they gave up for the relationship. This is framed against the economic disadvantage tied to the thing given up.For example, if one partner sacrificed career opportunities to care for children or support the other’s career advancement.

Non-Compensatory Basis: Non-compensatory entitlement is grounded in the idea that the recipient is at a loss as a result of the breakdown of the relationship. This recognizes that some partners become financially dependent during a relationship. The means, needs and other circumstances of the spouse upon separation will be considered. 

Contractual Basis: Contractual entitlement is found when there is an agreement granting the entitlement, such as a cohabitation agreement.

There are situations where spousal support is denied, particularly in cases of short relationships without children, where both partners maintained financial independence, or where awarding support would be inconsistent with the objectives of the Family Law Act.

Courts will examine factors such as:

• The financial needs and circumstances of both partners
• The length of the relationship
• Roles and functions performed during the relationship 
• Any economic advantages or disadvantages arising from the relationship
• The ability of the recipient to become self-sufficient
• Any existing orders or agreements related to support

 

Calculating Spousal Support Payments

Once entitlement to spousal support is established, the next step is determining the appropriate amount and duration. While the law doesn’t provide a precise formula, the Spousal Support Advisory Guidelines (SSAG) offer a framework for calculating support. 

The SSAG are not legally binding but are widely used by courts and lawyers as a starting point for spousal support determinations. They provide ranges for both amount and duration based on:

• The income of both partners
• The length of the relationship
• The presence and age of children
• Childcare responsibilities and arrangements
• Tax implications of support payments

The two basic formulas used in the SSAG are:

• Without Child Support Formula: Applied when there are no dependent children, this formula considers the gross income difference between spouses and the length of cohabitation. The duration of support ranges from 0.5 to 1 year for each year of marriage (including years of cohabitation). years 
• With Child Support Formula: Used when there are dependent children and child support obligations, this formula accounts for the net disposable ale income of each spouse after accounting for child support payments.

The process of how spousal support is estimated involves complex calculations that typically require specialized software. Legal professionals use these tools to determine appropriate ranges for both amount and duration of support.

Factors that might lead to amounts outside the suggested ranges include:

• Illness or disability of either partner
• Debt payments related to the relationship
• Property division outcomes that affect financial needs
• Special needs of children that impact earning capacity
• Non-taxable income situations

Duration of Spousal Support Payments

The duration of cohabitation period plays a significant role in spousal support determinations for common law couples:

• Less than 3 years: Generally no entitlement to support unless the couple has a child together
• 3-5 years: May receive short-term, transitional support
• 5-10 years: Typically results in time-limited support to facilitate economic self-sufficiency
• 10-20 years: Longer support periods, potentially indefinite depending on circumstances
• 20+ years: Often results in indefinite support, especially if the relationship breakdown occurs later in life

The “rule of 65” is also considered: if the years of cohabitation plus the support recipient’s age at separation equals 65 or more, indefinite support may be appropriate.

It’s worth noting that having a formal cohabitation agreement in place can provide clarity and certainty regarding support obligations. These agreements allow couples to define their own terms rather than relying on statutory provisions.

Child Support Considerations

When common law couples with children separate, child support takes priority over spousal support. This principle reflects the legal understanding that meeting children’s needs is the first financial obligation of both parents.

Key considerations regarding the interplay between child support and spousal support include:

• Child support is calculated first, using the Child Support Guidelines
• Child support is not tax-deductible for the payor or taxable for the recipient
• The payment of child support may reduce the payor’s ability to pay spousal support
• Special or extraordinary expenses for children are typically shared proportionally to income after basic child support is calculated
• The “with child support” formula in the SSAG accounts for the economic impact of child support obligations

For common law parents, the obligation to support children exists regardless of the length of the relationship. Even if a common law relationship lasted less than three years, child support obligations remain intact, and the presence of a child may create eligibility for spousal support that would otherwise not exist.

Enforcement of Spousal Support

Once spousal support is established through either agreement or court order, understanding the enforcement and modification processes is essential.

Court Order Compliance

In Ontario, spousal support orders are typically enforced through the Family Responsibility Office (FRO). This government agency:

• Processes and monitors support payments
• Takes action when payments are missed
• Can garnish wages, seize assets, suspend licences, or take other enforcement measures
• Works with similar agencies in other provinces and some countries to enforce orders across jurisdictions

For common law partners, enforcement of support orders works exactly the same as for divorced couples once a valid order or filed agreement exists.

Variation of  Spousal Support 

Circumstances change over time, and spousal support arrangements may need to be adjusted. Specifically, spousal support can, and should, change if there has been a “material change in circumstances”.

Built-in Review: Some agreements or orders include provisions for periodic review or automatic adjustments, and define this as a “material change in circumstances” triggering review.

Other types of material changes that might warrant modification include:

• Significant increases or decreases in either partner’s income
• Retirement of either partner
• The recipient becoming self-sufficient
• Illness or disability affecting earning capacity
• The recipient entering a new relationship

It’s important to note that informal changes without proper documentation can lead to problems with enforcement and potential claims for retroactive support. Any modifications should be properly documented and, if necessary, filed with the court.

 

How to change Spousal Support

Mutual Agreement: Partners can negotiate changes to support arrangements and formalize them in a new agreement.

Litigation: Court Application/Motion to Change: Either partner can apply to the court for a variation if there has been a “material change in circumstances”.

Frequently Asked Questions

Do I qualify as a common law spouse if we lived together for two years but have a child together?

Yes. For spousal support purposes in Ontario, you qualify as common law spouses if you have a child together and your relationship was of “some permanence,” even if you lived together for less than three years. The presence of a child creates eligibility for spousal support that might otherwise require a longer cohabitation period.

Can spousal support be awarded if we never lived together full-time?

Possibly. Courts look at the substance of the relationship rather than strict adherence to continuous cohabitation. If you maintained a committed relationship where you functioned as a couple but had periods of separation due to work, education, or other legitimate reasons, you might still qualify as common law spouses. The court will examine the nature and quality of the relationship rather than focusing solely on physical cohabitation.

How long does spousal support last for common law relationships?

The duration of spousal support for common law relationships generally follows the same principles as for married couples once eligibility is established. For shorter relationships (under 5 years), support might be transitional, lasting for a period equal to half the length of the relationship. For mid-length relationships (5-20 years), the duration might range from half to one times the length of the relationship. For long relationships (over 20 years) or where the relationship has lasted more than 5 years and the recipient’s age plus the years of cohabitation total 65 or more, indefinite support might be appropriate.

Can we agree to waive spousal support in a cohabitation agreement?

Yes, common law couples can include provisions regarding spousal support in a cohabitation agreement, including waivers. However, courts retain the authority to set aside such waivers if they are found to be unconscionable at the time of separation, particularly if the waiver would leave one partner dependent on social assistance. To maximize enforceability, such agreements should be made with independent legal advice for both parties, full financial disclosure, and without duress or undue influence.

Does remarriage or repartnering automatically end spousal support for common law relationships?

No, remarriage or entering a new common law relationship does not automatically terminate spousal support obligations. While it may be a factor in considering variation or termination, courts will assess whether the new relationship actually changes the recipient’s need for support or the payor’s ability to pay. In some cases, particularly where support is compensatory in nature, it may continue despite a new relationship.

Conclusion

Spousal support for common law couples in Ontario presents unique considerations and challenges compared to married couples. While the three-year cohabitation requirement (or having a child together) creates a threshold for eligibility, once that threshold is met, the principles guiding support determinations are similar to those for married couples.

Understanding your rights and obligations regarding support is essential when ending a common law relationship. Key points to remember include:

• Eligibility depends on meeting the definition of “spouse” under the Family Law Act
• Support is not automatic but based on factors such as financial interdependence, economic disadvantage, and need
• The length of the relationship significantly impacts both entitlement and duration
• Child support takes priority over spousal support
• Property rights differ significantly from those of married couples
• Professional legal advice is crucial to navigating this complex area of law

If you’re facing the end of a common law relationship and have questions about your rights or obligations regarding spousal support, contact our experienced family law team for guidance tailored to your specific situation.