Family Law Blog

How Is Property Divided When Common Law Couples Separate? Do They Have to Share All the Assets They Own Together?

common law couple separating

A lot of common law spouses ask about how their assets are divided when they break up.  In Ontario, the law is different for common law couples than it is for married couples.  For common law couples it is more complicated.  You probably should go over your situation in detail with a family lawyer. However,  this page will give you some general information and some links you can follow to get more information.

First, being common-law, even after 3 years, is not the same as being married. See this page.  The parts of the Family Law Act that apply to property division for married spouses do NOT apply to common law couples in Ontario. Your rights to each other's property are the same as any two other people.

Whose name is on title is not always the answer to the question of who owns a piece of property - especially for common law couples.  This is where things get complicated. A person who is not on title can get a court to say that he or she has partial ownership of a property, even though her or she is not on tittle, if that person contributed something of value to that property (money or work) without being compensated in some way - either by way of pay, free rent, or similar.

Family Home for common law couple and their family

The opposite is also true.  If two people are on title, but one one of them has contributed nothing (or very little) in terms of money or work to the property, a court may say that person's interest is very small (maybe 10% instead of 50%) of in extreme cases, that the person has no interest at all in the property.

There is also the concept of a "joint family venture" where one spouse put all his or her effort into some asset to develop it for the whole family, the family may get an interest in the property, even if they did not contribute to it directly. That would be particularly true if money (or a spouse's time) were taken away from the family to go into that asset.  This is a relative new idea in family law, so how it applies to specific situations is not entirely clear.

John's Book:

Guide to the Basics of Ontario Famly Law - an easy to understand book to help with separation, divorce, family court, mediation, arbitration and child welfare

An easy-to-understand guide to Ontario Family Law for non-lawyers. Click on the cover above to purchase on Amazon.

Guide to the Basics of Ontario Family Law Available on Kindle
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So, the answer to your question is complicated.  You should speak to a good family lawyer about it.  The Law Society recommends certified specialists for complicated legal questions.  It may be possible to get a common law spouse off title to a property without giving him anything because he put nothing into the house.  Or, a common law spouse  may give up her interest in "family" house in exchange for the other spouse not making a claim against a property that the first spouse owns.  Or, if where the first spouse sacrificed to raise the kids, that spouse may be entitled to spousal support (watch this video or read this page).  If that is the case, the second spouse may give up the house if the first does not go after spousal support. These options may or may not be good deals depending on a lot of other factors.

All these topics are also covered in much more detail in this  easy-to-understand best-selling book on Ontario Family Law.  Obviously, you could loose a lot of money in a separation if you do not plan properly, so it is worth your while to get more information.

If We Call Off the Wedding, Does the Fiancee Get to Keep the Engagement Ring?

engagement rings - are they a really a gift?  Do you ever have to give them back?

Engagement rings, and other "gifts in contemplation of marriage" are not gifts in the traditional sense.  Rather, in the legal context, they are part of a contract to get married.  The contract works like this: He asks you to marry him and offers you the ring as "consideration" (which is like payment under a contract) for going through with the marriage.  You agree to go through with the marriage and take the ring as "consideration".  However, if you do not go through with the ceremony, then the contract is not completed and you are no longer entitled to the ring.  Further, it does not matter whose fault it was that the wedding did not take place.  See section 33 of Ontario's Marriages Act.

John's Book:

Guide to the Basics of Ontario Famly Law - an easy to understand book to help with separation, divorce, family court, mediation, arbitration and child welfare

An easy-to-understand guide to Ontario Family Law for non-lawyers. Click on the cover above to purchase on Amazon.

Guide to the Basics of Ontario Family Law Available on Kindle

There are lots of other things to think about before you get married. For more ways your heart can get you into legal trouble, listen to this podcast.  For some more information about the legal and financial obligations of marriage watch this video.  To make sure your marriage is what you expect it to be, you may want a marriage contract.  See this page on how to have an enforceable marriage contract.

For more information about family law questions, including everything you should know about family law before you get married and what you can do with a marriage contract, get a copy of this easy-to-understand best-selling book on Ontario Family Law.

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Does the Family Court Judge Have to Follow the Custody/Access Assessment for a 13 Year Old Child? What if the Child Does Not Agree

kid divorce big

Custody/access assessments are not binding on judges. That means judges do not have to follow them.  The report is only one piece of evidence, and the psychologist is only witness at a trial.  The judge has to consider everything.  For all the factors that a judge has to consider, listen to this podcast and read this webpage

At 13 years old, what a child wants is a factor that the judge has to consider, and it may be very important to the judge.  This webpage discusses what voice a child should have in family law or divorce proceedings. Here is a good video on the involvement of children in deciding matters in a divorce.  You can also listen to this podcast on whether what a child says matters in family court.  

Judges are becoming more and more interested in what children have to say in separation and divorce.  If the child has a clear preference, that is the result of pressure (intentional or not) from one party, that can be very important to how the judge decides.

If you have a report in your favour and your child's views are in your favour, then you should make a formal offer to settle on the same terms as the report.  If the judge agrees with the report after the trial, the judge can order your spouse to pay almost all of your legal fees from the day you made the offer until the day the judge made the order.  If that order comes after a trial, then your spouse could owe you a lot of money.  There may be some other strategies to get what you want while avoiding a trial, but those would depend on some very particular facts in your case. So, you should speak to a family lawyer about your situation.

You should also get a copy of this easy-to-understand $20 book on Ontario Family Law.   It explains the court process, and gives several tips for how to succeed in court, and goes over the basics of Ontario Family Law so you have some idea of what your rights are.  It goes over everything in this post in more detail.  It may even be on sale on Amazon right now. 

My Ex and I Don't Agree on Parenting Decisions, Do We Have to Let a Judge Make the Decision?

John's podcast photo

35 - Resolving Children's Issues Outside of Court

When separated parents cannot make decisions for their children, or cannot agree who should have custody (to see what that means, read this post), they may have to go to court.  Judges are almost never trained in social work or child psychology.  Some of them did not even practice as family lawyers.   There are ways to get those child-focussed professionals involved to help decide parenting issues.  Check out this episode of the Ontario Family Law Podcast for an explanation and some ideas. The following is an excerpt from my easy-to-understand book or $9.99 ebook on Ontario Family Law: Guide to the Basics of Ontario Family Law.

Getting Professional Help Making Parenting Decisions

After separation, parents who are in conflict frequently employ professionals to assist them with parenting issues.  Alternatively, a court may order assistance from professionals.  In separation and divorce matters, these professionals are most commonly involved as either parenting coordinators or as custody/access assessors.  The same professionals can also act as mediators to help parents develop a parenting plan for their children.

Parenting coordinators help fighting separated parents resolve on day-to-day parenting issues.  Parenting coordinators are almost always child-focussed social workers or psychologists.  They take a child-centered approach to suggest solutions to disagreements between parents.  Parents can agree, or the court might be able to order,[1] that a parenting coordinator will have the powers of an arbitrator to make a decision when the parents cannot agree.  Since the process involves a child-centred mental health professional, parenting coordination is a popular way to address minor parenting issues between parents who are always in conflict.  Although parenting coordinators are privately retained, it is usually cheaper to pay one parenting coordinator than two lawyers to resolve issues such as when and where access exchanges will take place, how to get information from a child's school, or which parent will attend a school function. The downside of parenting coordination is that it can provide easy access to a forum to keep fighting if one or both parents want to continue the conflict. However, if both parents want to find ways to end their conflict, parenting coordinators may be able to teach them how.

A custody/access assessment, which is also called a “Section 30 Assessment”,[2] is very different from parenting coordination.  Judges often feel that they do not have the proper training to determine what is in a child's best interests, because a judge’s training is in the law and not in child welfare.[3]  So, judges often like to have a child-focused mental health professional provide advice as to what the custody/access or parenting plan should look like.  There are two methods to obtain custody/access assessment.  The first is that the parties can agree to have a custody/access assessment.  The second method to obtain a custody access assessment is that a judge can order one if he or she is of the opinion that there are clinical issues that are outside the scope of the judge’s legal training.[4] 

Custody/access assessors are social workers, psychologists or psychiatrists who are familiar with how to conduct custody/access assessments and regularly do that type of work.  They meet with the lawyers, and then with the parties, usually several times, sometimes together and sometimes apart.  The custody/access assessor usually meets with the children as well.  Often the assessor will speak to other professionals and other people who are important in the children’s lives.

At the end of this process, the assessor forms an opinion as to which parent should make which decisions regarding the children and what time the children should spend with each parent.  The assessor then communicates his or her opinion to the parties.  If the parents do not agree with that opinion, the custody/access assessor’s role is limited to being a witness at trial.  The Trial Judge can accept or reject the assessor’s opinion.[5]  However, the opinion of a custody/access assessor is usually very persuasive to a judge.

The Office of the Children’s Lawyer can be involved in custody/access disputes before the court.  A court can ask the Office of the Children’s Lawyer to become involved to assist a child.  The Office of the Children’s Lawyer still has the discretion as to whether or not it will become involved in custody/access matters.  In addition, the Office also decides whether it will appoint a lawyer for the child,[6] or appoint a social worker to conduct a “Clinical Investigation,”[7] which is very similar to a custody/access assessment, or whether the agency will provide both.  The Office of the Children’s Lawyer, which exists only in Ontario, takes the position that it is not necessarily its job to advocate for a child's views and preferences, but rather to advocate for that child's best interest.  The child’s views and opinion are only one consideration that the lawyer representing them through the Office of the Children’s Lawyer will consider.  The agency will consider all the circumstances surrounding the child and tell the court what it believes to be in the child's best interests.  The position of the Office of the Children’s Lawyer is very influential on a judge, because judges often view that Office as being impartial.

There may be many other issues besides custody and access between separating partners or spouses other than the ones discussed above.  This is why it is important for you to consult a Family Law lawyer regarding your specific custody and access concerns. 

2016-04-24 Guide to the Basics of Ontario Family Law Best Seller

An easy-to-understand guide to Ontario Family Law for non-lawyers. Click on the cover above to purchase on Amazon.

Guide to the Basics of Ontario Family Law Available on Kindle
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[1] Young v. Young 2010 ONCA 602.


[2] The order for these assessments are made pursuant to section 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended.

[3] Przygocki v. Przygocki [1993] O.J. No. 1743

[4] Levine v. Levine (1993), 50 R.F.L. (3d)  414

[5] Weaver v. Tate, [1989] O.J. No. 2201 (H.C.J.).

[6] Pursuant to section 89(3) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.

[7] Pursuant to section 112 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended.

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