Sharing your life with someone is a special experience – you share the ups and downs, the good and the bad. While it may make no difference to you or your partner whether or not you are married, it can make a big difference in the law. This is especially true when discussing wills.

What is a common law relationship?

According to Citizenship & Immigration Canada and the CRA, to prove that you are in a common law relationship you have to prove that you have been cohabitating with your significant other for a minimum of 12 months consecutively. Separations for business, travel, or family are allowed as long as any period of separation within that 12 months is short.  Additionally, according to the CRA, you are in a common law relationship if:

  • The couple have a child; or
  • One partner has custody of the other partner’s child, and the child is entirely dependent on that person for support.

Despite this official definition of what a common law relationship is, there is not uniform legislation across the country regarding common law relationships. The Supreme Court has granted the right to decide if common law partners have the same rights as married couples to the provinces. Quebec does not recognise common law relationships – no matter how long they have lived together. In Alberta partners must live together for at least three years or have a child and live together. In Nova Scotia the time period is two years. In British Columbia couples have full rights of married couples. In Ontario couples must live together for three years.

Needless to say, the legislation is complex, and the best course of action is to speak to a lawyer about your unique situation.

Common law partners and wills

In Ontario, the law dictates that common law couples do not receive the same type of special privilege that married couples receive in dividing an estate. As a result, even if you are in a common law relationship your assets, in the case of your death, will not go to your partner. Instead they will be distributed in the following order:

  1. To your children, grandchildren, etc.
  2. To your parents
  3. To your siblings
  4. To your nieces and nephews
  5. To any other blood relatives
  6. To the Crown (aka Canada)

Effectively, being in a common law relationship means nothing in estate law.

How to protect your common law partner

If you want to ensure that your common law partner is protected, you must either get married (which may not be your preferred course of action) or write a will that makes it clear that you want your common law partner to inherit your estate. Additionally, it is important to ensure that any current assets (or liabilities) that you share are properly structured.

For example:

  • If you own property together, ensure it is held in joint tenancy with right of survivorship passing to your partner.
  • Review all of your life insurance, pension, and bank account policies.

Ultimately, everyone’s legal situation is unique and takes into account a different set of circumstances. For the accurate, personalized advice contact the team at Zayouna Law to ensure your common law partner is protected under the law.

Additional sources:

http://canadian-lawyers.ca/Understand-Your-Legal-Issue/Wills-Estates-and-Trusts/Wills-and-Probate/Common-Law-Spouse-Inheritance-Rights.html

https://en.wikipedia.org/wiki/Common-law_marriage#Canada, Nissan note 2007 automatic review