Common-law partners in Ontario should have the same rights as married couples, say family lawyers
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Some family law lawyers in Ontario are calling for changes to provincial legislation that treat common-law couples differently from married couples when their relationship ends.
Although the Family Law Act of Ontario states that all property acquired by a couple during marriage must, in all exceptional circumstances, be divided equally upon divorce, this provision does not apply to common-law couples.
As a result, people living in common-law relationships in this province often have to resort to the long and expensive process of going to court to get their fair share of assets.
Other provinces have changed their laws to give common-law partners who end their relationship the same property rights as married couples.
Calls for Ontario to change come as new census data shows that 23 per cent of Canadian couples live common-law, the highest rate among G7 countries.
Toronto-based family lawyer Ken Nathens says the rights gap between common-law and married couples is a significant issue and he wants to see the provincial government move forward to change the legislation.
« What would be a simple thing for married couples – just split the house 50-50 – becomes a three or four day court battle for common-law couples, which is very expensive and certainly doesn’t help not the parties to move on. . » Nathans told CBC Radio Ontario today.
« If you’re a common-law partner and one spouse owns the house to the exclusion of the other, the second spouse has to prove all their contributions to that property, so you’re getting into crazy litigation, » a said Nathans.
Family lawyer Russell Alexander also says property division laws that apply to married couples in Ontario should apply to common-law partners.
« Fairness would require it, in my view. I think the legislature should step in, » said Alexander, founder of Russell Alexander Collaborative Family Lawyers.
“Common-law couples [in Ontario] don’t have the same legal rights and obligations, so they have to turn to the courts when they separate to try and get what they think is their fair share of ownership, » Alexander said. Ontario today.
He credited the courts for handing down decisions that fairly divide property between common-law spouses when they divorce, but he believes the provision should be clarified in law.
Emma Katz, a partner at Kelly D. Jordan Family Law in Toronto, says many people in Ontario mistakenly believe that a common-law relationship means the same thing as marriage when it comes to property rights.
Ontario law makes the division of property between married spouses when they separate far less complex, clearer and easier to resolve without lengthy litigation than for common-law spouses, Katz told CBC Radio. Subway morning.
“We have a fairly arbitrary pattern [in Ontario] », Katz said. « You have people who have been in a relationship for more than 30 years and who are not married, and they are not subject to the same rights. So I think it’s time to have a discussion about how and when [common-law] couples should share their wealth. »
British Columbia changed its law in 2013 to impose a 50-50 split of real estate between common-law couples, largely to reduce the time these couples had to spend in court, said Denise Whitehead, president sexuality, marriage and family. studied at St. Jerome’s University of the University of Waterloo.
Whitehead said it would be good if Ontario family law were consistent in its approach to married couples and common-law partners to simplify the process and ensure all spouses know their rights and obligations. .
CBC News asked Attorney General Doug Downey on Friday if the government is reviewing the Family Law Act or is willing to change its provisions on property rights for common-law spouses.
WATCH | How British Columbia Changed Its Divorce Laws to Better Protect Common-Law Spouses
Grace Choi says the law now treats common-law couples as married if they separate
In response, Downey’s publicist Natasha Krstajic released a statement explaining how the current law’s property provisions only apply to married spouses.
“It reflects the reality that common-law unions vary widely and are entered into in a wide range of circumstances,” Krstajic said.
She added that the government introduced some legal reforms in 2020 to « make it easier, faster and more affordable for individuals and families to resolve family legal issues ». However, these did not deal with the provisions on the property rights of common-law spouses.
In 2011, the Liberal government of the day changed Ontario rules to provide divorced couples with options for mediation and require them to attend an information session on alternatives to going to court.
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