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Common law separation can be confusing because many people assume the legal rules are identical to those that apply to married couples. They are not. If you live in Caledon and are separating from a partner you were not married to, you may still need to address parenting arrangements, child support, spousal support, property, and debt. The practical issues often look the same as any other breakup, but the legal framework governing those issues can be very different from what applies to married spouses.
In everyday conversation, “common law” often just means you live together. In Ontario family law, the meaning depends on what issue you are talking about.
For spousal support claims under Ontario’s Family Law Act, a “spouse” can include unmarried partners if they cohabited continuously for at least three years, or if they have a child together and lived in a relationship of some permanence.
That definition is important because it can open the door to a spousal support claim, even if you were never married.
But here’s the big twist: property division rules that apply to married spouses (like equalization of net family property) generally do not apply to unmarried spouses. Ontario’s own public information is clear that common law partners typically keep the property they own and do not automatically share the increase in value the way married spouses do.
So, common law separation often involves:
Creating a written separation agreement to lock down terms
If you’re in Caledon and separating, a steady first plan usually beats a rushed one. Here are ten practical steps:
A lot of Caledon couples are shocked to learn this: separating common law partners are generally not entitled to an automatic 50/50 division of the wealth accumulated during the relationship.
The Ontario Government website explains it plainly: “Common law couples do not have the right to split an increase in value of the property they brought with them to the relationship.”
So, what happens instead?
Most common law property outcomes start with ownership:
That said, common law partners can still have claims in some cases, especially when one person contributed significantly to property owned by the other.
If one partner was enriched, the other suffered a corresponding deprivation, and there is no legal reason for that enrichment, courts can grant remedies. In Kerr v. Baranow, the Supreme Court of Canada discussed unjust enrichment and how a “joint family venture” can be a basis for a remedy in appropriate cases.
In real-life terms, these claims can come up when, for example:
These cases are fact-specific and can be complex. If you think this applies to you, it’s worth getting legal advice early.
For married spouses, Ontario’s Family Law Act has special rules about the matrimonial home and possession rights.
Common law couples do not automatically get those same statutory possession rights.
That means if the home is in only one person’s name, the other person may not have the same built-in right to stay that married spouses often assume exists.
Practical tip: if one person is moving out, many couples benefit from a short written interim agreement that covers:
If you have children, child support rules apply regardless of whether you were married.
The starting point is usually the “table amount” under the Federal Child Support Guidelines, based on the payor’s income and the number of children.
When each parent has the children at least 40% of the time, section 9 of the Guidelines applies. In Contino v. Leonelli-Contino, the Supreme Court of Canada explained that once the 40% threshold is met, the court considers the factors listed in section 9 to determine the amount of support, and it is not purely automatic math.
In day-to-day negotiations, many parents talk about “set-off” support (the difference between two table amounts). That’s a common approach, but shared parenting cases can involve more analysis depending on costs in both homes and the children’s standard of living.
In Ontario, special expenses are commonly shared in proportion to incomes (not simply 50/50) unless you agree otherwise. Ontario’s Child Support Guidelines regulation covers the principle that these expenses are shared between parents or spouses.
Examples often include childcare, certain medical expenses, and agreed activities.
Common law partners can be eligible for spousal support in Ontario if they meet the definition of “spouse” for support purposes under the Family Law Act. This generally includes couples who lived together continuously for at least three years, or who have a child together and were in a relationship of some permanence. Unlike property division, which follows different rules for unmarried partners, spousal support rights can arise even if you were never married.
Spousal support can be negotiated in a separation agreement or determined by a court. In practice, lawyers and courts frequently use the Spousal Support Advisory Guidelines (SSAG) to determine a reasonable range for amount and duration. While the Guidelines are not binding law, they are widely relied upon across Ontario. Common factors considered include the length of the relationship, the roles each person played (such as income earner or primary caregiver), differences in income and earning capacity, and any economic advantages or disadvantages arising from the relationship or its breakdown. If spousal support is being discussed, it is important to obtain proper advice before agreeing to a specific amount or duration, as the financial impact can be significant.
Even though property rules differ, a written separation agreement is often the single most useful tool for reducing uncertainty. It can cover:
Ontario’s Family Law Act includes rules about domestic contracts and allows a court to set aside a contract in certain situations, including significant non-disclosure or a party not understanding the nature or consequences.
That’s why full disclosure and independent legal advice are so important. If the agreement is meant to protect you, you want it to stand up later.
For spousal support purposes under the Family Law Act, you may qualify as “spouses” if you lived together continuously for at least three years, or if you have a child together and were in a relationship of some permanence.
For property division, however, there is no automatic equalization regime for common law couples, no matter how long you lived together. Length of cohabitation does not create an automatic 50/50 property split.
No. In Ontario, unmarried partners generally keep the property that is in their own name. The equalization rules that apply to married couples under the Family Law Act do not automatically apply to common law partners.
That said, there can be claims based on unjust enrichment or constructive trust if one person significantly contributed to property owned by the other. These cases are very fact-specific and often require legal advice.
Not for child support or parenting issues. The Divorce Act applies to married spouses seeking a divorce, but child support principles are the same whether parents were married or not. The Federal Child Support Guidelines apply based on income and parenting time.
In other words, children’s rights to financial support do not depend on whether their parents were married.
Not necessarily. When each parent has the child at least 40% of the time, section 9 of the Federal Child Support Guidelines applies. Courts look at both table amounts, the increased costs of shared parenting, and the financial circumstances of each household.
Many couples use a “set-off” calculation (the difference between the two table amounts), but this may affect tax credits. Shared parenting does not automatically mean zero support.
Yes, it is strongly recommended. Even when things feel amicable, a written separation agreement:
Under the Family Law Act, domestic contracts can be challenged in certain situations, especially if there was incomplete financial disclosure or a lack of understanding. That is why full disclosure and independent legal advice are important before signing.
If you are separating from a common law partner in Caledon, the biggest mistake you can make is relying on assumptions. Property rights are different from married couples. Support can still apply. Parenting and financial decisions made now can affect you for years.
We proudly support common law couples throughout Caledon and the Regional Municipality of Peel dealing with common law separation, divorce mediation, and family mediation, including:
Many families in these communities choose divorce mediation and family mediation to resolve parenting, support, and property issues without going to court.
👉 Schedule your free, joint, 30-minute consultation to learn more.
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📧 connect@positivesolutions.ca
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“Changing the way couples separate in Caledon Ontario”
President and founder of Positive Solutions Divorce Services®
(416)-559-5527 | connect@positivesolutions.ca | positivesolutions.ca
The information provided in our blogs and throughout our website is intended for general educational purposes, offering insights into separation and divorce processes in Ottawa and throughout Ontario. While we make every effort to ensure our content is accurate and current, it should not be considered legal advice. Although we can provide legal information to help you understand the divorce process, we recommend consulting with a qualified family law lawyer to obtain legal advice specific to your situation.
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Throughout the mediation process, we encourage open communication and creative problem-solving, often uncovering mutually beneficial solutions. Our goal is to help you create a separation agreement that provides clarity and stability during this transitional period, while also being flexible enough to adapt to future changes.
By choosing our mediation services for your separation agreement, you can often achieve a more personalized and comprehensive document than one created through traditional legal channels, potentially saving time, reducing costs, and laying the groundwork for a more amicable post-separation relationship.
A Separation Agreement is a legally binding document that outlines how separating spouses will divide parenting responsibilities, property, and finances after a relationship ends. At Positive Solutions Divorce Services®, we help couples create clear, enforceable Separation Agreements through mediation—without going to court.
Our trained mediators guide both partners through every topic that matters: parenting time, decision making, child support, spousal support, and property equalization. We offer a calm, structured environment where couples can resolve issues respectfully and affordably. Once decisions are made, we prepare a comprehensive agreement that can be reviewed by independent legal counsel and signed to become legally binding in Ontario.
*The information included in a Separation Agreement, or other applicable documents, is purely a guide and cannot substitute for a lawyer’s skill, knowledge, and careful drafting. These documents are simply reflective of the information received from you and are an administrative service only.
Positive Solutions Divorce Services® does not warrant and is not liable or responsible for ensuring the validity and/or enforceability of any Agreement or clause in an Agreement and remains your full and sole responsibility. Full financial disclosure is a crucial element in the preparation of any Agreement. It is also critical that you understand your rights and obligations under existing law.
In many circumstances, the Agreement will be addressing complex assets and issues, such as corporations, trusts, pensions, tax implications etc. In these cases, it is imperative that the actual relevant documentation be reviewed and that the expertise of an accountant or specialist in the subject area be consulted to ensure that the Agreement properly addresses these complex assets and issues. It is strongly recommended that you retain Independent Legal Advice before signing any documentation arising out of the end of your marriage or common law relationship.