Ken Nathens, the founding and managing partner of Nathens, Siegel LLP answers:

In the case of common law couples, how is property divided? Are the rules the same as for legally-married couples?
In Ontario, couples who are not married and are living as common-law partners can apply for their properties to be divided when they separate from each other. The law and the process for them is different from a married couple, and it can get quite complex because the couples may have to provide extensive accounting regarding which of them did what and who paid for what during their common-law relationship. This accounting exercise can go back 10 to 20 years. Often, it is difficult to determine the intent of the couple regarding the purchase and sharing of property many years after the relationship has begun.

The court will look at whether there is a “joint family venture” in its consideration of whether property is to be divided. In determining whether or not a joint family venture exists, the following factors should be considered (although this is not an exhaustive list):
Mutual effort: Have the parties worked together towards a common goal? This may include consideration of the pooling of efforts and teamwork, the decision to raise children together, and the length of the relationship.

Economic Integration: The more extensive the integration of the couple’s finances, economic interests, and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture.

Actual Intent: Did the parties intend to form a joint family venture? These intentions may be stated or inferred by the parties’ actions. Did the parties hold themselves out as being “equivalent to married”? Was the relationship long and stable?

Priority of the Family: Did the parties plan for their financial future together? Did one party give up his or her employment for the common financial future of both of them or to raise children? Is one party left in a worse position than he or she otherwise would have been if he or she had not acted in a way to assist the family to his or her financial detriment?

Mutual Benefit Conferral: In determining whether or not there has been “unjust enrichment” given the mutual exchange of benefits, the respective contributions of the parties are taken into account in determining the claimant’s proportionate share. This weighing of benefits is not an exact science; it calls for the reasoned exercise of judgment in light of all the circumstances.

Once the joint family venture is established, courts must then define the remedy – which may be monetary compensation or a percentage of interest in the joint family venture. Courts still have significant discretion in terms of the appropriate remedy. For instance, if a percentage interest in the joint family venture is awarded to a common-law spouse, the percentage may be anywhere from 1% to 100% depending on the evidence and the particular circumstances of the case.

Here’s an example: Tom and Mary, a common-law couple, have lived together for 10 years. The house is in Tom’s name. Mary gave up employment to raise their children and she helped with renovations. Although the home is in Tom’s name, Mary may claim an interest in it as a result of her contributions to the family and the property; in other words, this is a joint family venture.

Contact one of our offices to discuss your case with a Mississauga or Toronto family law lawyer. You can reach us by phone at 888-353-1817 or via email to get started.
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