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Married vs Unmarried: Not All Spouses Are Equal

Married vs Unmarried: Not All Spouses Are Equal

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Posted May 17, 2018

The misconception that common law partners have the same rights and obligations as married couples is not uncommon. Despite the similarities between common law and married couples, the two relationship are not treated the same in Ontario for all family law purposes.

Misconception #1 “Common Law” After One Year of Cohabitating

No single definition of “Spouse”

The roots of the first misconception might be found in the various definitions of “spouse” under federal and provincial legislation. For example, pursuant to The Income Tax Act, you are considered to be in a common law relationship if you have, for example, cohabited in a conjugal relationship for at least 12 consecutive months or are the natural of adoptive parents of a child. This is solely for taxation purposes.

By comparison, the Ontario Family Law Act defines spouses, for the purposes of support obligations, as two persons who are married to each other or who are not married and 1) have cohabited continuously for a period of no less than three years, or 2) are in a relationship of some permanence and are the natural or adoptive parents of a child.

What does it mean?

Don’t assume because you are considered common law in one context, you will necessarily be considered the same in another. It is important to inform yourself as the rights and obligations arising upon the breakdown of your relationship will depend upon the legal status of your relationship.

Misconception #2 Spousal Support

Both the Ontario Family Law Act and the federal Divorce Act govern spousal support orders. Though the Divorce Act only applies to formerly married couples, the provincial legislation governs spousal support applications by common law spouses and married spouses who have not divorced.

As long as they qualify as spouses under the Ontario Family Law Act, common law spouses are legally entitled to make a claim for spousal support.

While married couples can automatically apply for spousal support under the Divorce Act or the Family Law Act, common law spouses can only claim it under the provincial legislation, if their relationship meets the threshold under the Ontario Family Law Act as set out above.

A related point to consider is the difficulties that might arise in determining whether or not a couple has cohabited for 3 years, and particularly when the partners have retained separate residences. Where the partners have a long-term commitment, offer each other financial and moral support and have demonstrated a marriage-like relationship from a social and societal perspective, they might be considered to cohabit even if they have separate residences.

Despite the differences in statutory language, both the provincial and the federal acts contain similar objectives and factors in determining the entitlement to spousal support. Moreover, the provincial spousal support legislation follows the same objectives and principles that guide spousal support determinations pursuant to the Divorce Act. In other words, the entitlement and amount of spousal support is generally calculated the same way for both married and common law couples, once spousal status is confirmed.

This blog post was written by Kate Wright, with the assistance of Articling Student Oumnia El Fadl.  Kate is a member of the Family Law, Wills and Estates and Litigation teams.  She can be reached at 613-369-0383 or at kate.wright@mannlawyers.com.

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Kate Wright

Kate Wright

I am a member of the family law, wills and estates and estate litigation service groups at Mann Lawyers. I am an enthusiastic and compassionate advocate for my clients. My experience in family law includes advising clients on property division, support issues, custody and access matters, domestic contracts and private adoptions. I assist clients with preparing wills, estate planning and administration matters, and disputes over estates, including issues related to capacity and dependent’s relief. My approach to dispute resolution is based on the needs of each client and their own particular circumstances. I am trained in Collaborative Practice and am a member of Collaborative Practice Ottawa. I seek to empower clients to resolve issues in the manner that best suits their interests. I graduated from the Schulich School of Law at Dalhousie University in 2008. I articled with a national firm in Calgary and was called to the Alberta Bar... Read More

Read More About Kate Wright

Kate Wright

I am a member of the family law, wills and estates and estate litigation service groups at Mann Lawyers. I am an enthusiastic and compassionate advocate for my clients. My experience in family law includes advising clients on property division, support issues, custody and access matters, domestic contracts and private adoptions. I assist clients with preparing wills, estate planning and administration matters, and disputes over estates, including issues related to capacity and dependent’s relief. My approach to dispute resolution is based on the needs of each client and their own particular circumstances. I am trained in Collaborative Practice and am a member of Collaborative Practice Ottawa. I seek to empower clients to resolve issues in the manner that best suits their interests. I graduated from the Schulich School of Law at Dalhousie University in 2008. I articled with a national firm in Calgary and was called to the Alberta Bar... Read More

Read More About Kate Wright

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