There are several aspects to separation in which common-law couples are treated differently under the law than those who are married. In the first blog in our series on what common-law couples should know about separation, we discussed the concept of the matrimonial home and the fact that the concept does not apply in common-law relationships. In the second blog in this series, we looked at the equalization of family property. In each of these instances, there are key differences in how the law treats married couples and those who are common-law.

In this third and final installment, we will examine the role of spousal support in the breakdown of a common-law relationship. In Ontario, the law states that common-law couples may qualify for spousal support, so long as they satisfy the legislative definition of the term ‘spouse’.

The Purpose of Spousal Support

Former spouses, whether married or common-law, are not automatically entitled to spousal support. Spousal support is commonly reserved for situations where the parties would otherwise be on unequal financial footing after separation.

Section 15(2) of the federal Divorce Act outlines the purposes of spousal support:

• To provide help to a spouse who is in financial need;
• To compensate a spouse for the care of the children, even if child support has been ordered;
• To compensate the spouse if he or she had lost the opportunity to earn an income in order to raise the children and/or support their spouse’s career.

By definition, the Divorce Act does not apply to common-law couples. The Divorce Act only applies to formerly married couples who have legally divorced. However, the concept of need-based compensatory spousal support is also accounted for in Ontario’s Family Law Act, which includes spousal support provisions that apply to both married and common-law couples.

Ontario’s Family Law Act and Spousal Support

Under section 1(1) of the Family Law Act, “spouses” are defined as two individuals, who were either married to each other or who entered into a marriage that was void or voidable. For the purposes of support, section 29 of the Family Law Act expands the definition of “spouse” to include persons who were never married to one another. Under the Family Law Act, common-law couples are considered “spouses” if one of two requirements are met:

1. The parties have a child, as set out in section 4 of the Children’s Law Reform Act, and have been in a relationship of some permanence; or
2. The parties continuously cohabited for a period of not less than three years.

If the parties meet the qualifications to be considered “spouses” under section 29 of the Family Law Act, then they will have similar rights to spousal support as legally married couples. As stated under section 30:

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

Canada’s Spousal Support Advisory Guidelines

While the entitlement to spousal support is determined under provincial law,  the federal Spousal Support Advisory Guidelines are still considered in setting the amount and duration of support. These guidelines provide a formula by which the courts can determine how the parties may share after-tax disposable income. However, determining a fair and appropriate amount to award to a former common-law spouse is a complex task, considering several factors, in order to determine a proper award in each case.

What Factors Do Judges Consider When Determining the Amount and Duration of a Spousal Award?

If a common-law couple falls under the definition of “spouses” under the Family Law Act, then the court will look at several factors to determine whether spousal support is warranted, and if it is, what the amount and duration of the award should be. Those factors will include:

• Whether there were any cohabitation agreements, orders, or arrangements already in place with respect to spousal support;
• The length of the common-law relationship;
• The ages of the common-law spouses;
• The financial means and needs of both common-law spouses;
• The roles of each common-law spouse during the period of their cohabitation;
• The effect of the breakdown of the relationship on both common-law spouses’ current financial positions; and
• How the children of the relationship are cared for, if applicable.

As outlined above, determining entitlement to spousal support for common-law couples can be a complex undertaking. First, the party seeking support must demonstrate they qualify as a spouse as defined under the Family Law Act. Second, there must be a demonstrated justification to award support. Lastly, the amount and duration of support will be dependent on several factors. Given the complexity involved in a claim for spousal support following a common-law relationship, it is advisable to consult with an experienced family law lawyer before making such a claim.

Contact Boulby Weinberg LLP for Advice and Representation with Respect to Spousal Support Entitlements for Common-Law Couples

At Boulby Weinberg LLP, our family law lawyers are exceptionally skilled at working with clients separating from a common-law spouse and securing their rights with respect to spousal support. To arrange a consultation, please complete our confidential online questionnaire, which will provide you with valuable preliminary information tailored to your specific situation. A representative from our firm will contact you within one business day to discuss your matter further and arrange an initial meeting. To contact our firm without completing the questionnaire, please reach out to us online, or call us at 647-494-0113 ext. 102.