Let me introduce myself as the newest Barriston blogger.  I joined the firm, as a partner last month.  Prior to this I practiced, mostly as a sole practioner, for the past sixteen years.  I have practiced law for twenty five years, mostly in the family law area.  I practice in the courts, but prefer mediation and arbitration  – more about that in later blogs.  The rest of my “bio” is on the regular site.

Over the past twenty five years, the most misunderstood definition in law is the “common law” relationship.  The area with the least knowledge is each party’s rights in a “common law” or unmarried relationship.

In Ontario, the Family Law Act does not define a “common law” relationship.  It simply provides rights to support to parties who have cohabited together for three years, or less time if there is a child of the union.

Technically, the only right that a party has in an unmarried relationship is to support – not to property.  The support applies to child and spousal support, if there are facts supporting such an entitlement.  Support may sometimes apply for non-biological children (step children) in certain circumstances. 

Provincial law defines property rights in Canada.

In Ontario,  there are no statutory rights to property division from one party to the other, in an unmarried relationship, regardless as to how long the relationship has lasted.  Many people in this kind of relationship believe that after “x” years they are entitled to a property division – part of the home or the other person’s pension, just like married people – and the term I often hear on initial consultations is three or five years.  Not true.

However, this does not mean that at the end of a long unmarried cohabitation, there are no property rights or obligations.

First, joint property is divided as all joint property – so if the home is jointly owned, each party is entitled to his or her share and has the rights in law to deal with that property the same as a married couple (with some exceptions, such as exclusive possession orders) or commercial partners.

Secondly, the law has created a “fiction” to protect parties in regard to such claims.  This fiction is known as the “constructive trust”.  Essentially, the argument is that the person who owns the property holds a portion of the property in trust for the non-titled party/partner. The history of the development of the constructive trust is monumental and was a huge  shift in the law of Canada.  Originally a woman in the Prairies named Mrs. Murdoch separated from her husband after a lengthy relationship (in this case they were married, but this was before the law reform statutes of the nineteen seventies), and she was not “on title” to the family farm.  In dissent, Justice B. Laskin espoused that it was unfair for Mr. Murdoch to have sole title to the property so he imposed an old equitable remedy from the English law to impose a trust on Mr. Murdoch so that he held fifty percent of the property for Mrs. Murdoch.  It was fair process and provided relief to Mrs. Murdoch for the years she spent on the farm, working, caring for animals, fixing fences, raising the children, etc. Mr. Murdoch received an economic benefit from Mrs. Murdoch – and she did not get paid for it (in this case it was defined as a “deprivation”).  There was no real or legal reason for the deprivation.  So Mrs. Murdoch would have received half the farm, had Justice Laskin had his way!

Over the years the constructive trust remedy has evolved and had influence and a lack of influence.  Most recently, the Supreme Court of Canada released the most substantial case influencing non-married parties in years. The case decided has clarified and guided lawyers in regard to unmarried couples and their families.  In making property decisions for unmarried partners, (both heterosexual and same sex parties), the court introduced the term, “Joint Family Venture” or “JFV”  to the legal lexicon.  In deciding whether property division is a fair remedy for an unmarried couple, the test is defined by four leading facts to consider: mutual intent, economic integration, actual intent and the priority of the family.

So, how does this affect you?  The short answer is that if you are in a relationship outside of marriage for whatever reason you decide to do so, you have support rights.  You might also have a right to the other party’s property by having legal title or a right that party’s property over the years as a result of your “joint family venture”.   A party in a cohabitation may not have the same rights to property as one in a marriage, but the law has established fictions, goalposts and pillars to provide relief when and if it is right to do so.