Many people assume that after living together in a common-law relationship for a certain number of years, they automatically acquire the same property rights as married spouses. In Ontario, this is not the case.
Unlike married spouses, common-law partners do not have an automatic right to equalization of Net Family Property under the Family Law Act. Regardless of whether the relationship lasted three years, ten years, or even several decades, a common-law spouse cannot bring an equalization claim simply because the relationship has ended.
However, this does not mean that a common-law partner can never make a claim against the other partner’s property. In certain circumstances, a claim may be available through equitable remedies, including:
- Unjust Enrichment
- Constructive Trust
- Resulting Trust
These claims are based on the idea that one partner may have contributed financially or through services, sacrifices, or other forms of contribution that resulted in an unfair benefit to the other partner.
Unjust Enrichment Claims Between Common-Law Partners
The Supreme Court of Canada has recognized that common-law partners may seek remedies where one partner has been unjustly enriched at the expense of the other. In cases such as Kerr v. Baranow and Vanasse v. Seguin, the Court confirmed that the circumstances of each relationship must be examined carefully, including:
- The financial contributions made by each partner;
- Contributions to the household and family responsibilities;
- Whether one partner sacrificed career opportunities or income;
- Whether the parties operated as a “joint family venture.”
A successful claim does not automatically give the claimant ownership of property. The court will determine the appropriate remedy based on the evidence presented.
Which Court Has Jurisdiction?
The appropriate court depends mainly on the type of remedy being requested.
Small Claims Court
If the claim is for money compensation only and the value of the claim falls within the monetary jurisdiction of the Small Claims Court, the claimant may bring the matter in Small Claims Court.
For example, if a former common-law partner claims that they contributed financially to renovations, mortgage payments, or other expenses and the total amount claimed is less than $50,000, the claim may generally be brought in the Ontario Small Claims Court, provided that the claimant is seeking a monetary award rather than an interest in the property itself.
Superior Court of Justice / Family Court
If the claimant is seeking a remedy involving:
- An ownership interest in a home;
- A constructive trust over real property;
- A declaration of property rights;
- Transfer of an interest in land;
the matter generally falls outside the jurisdiction of Small Claims Court and must proceed in the Superior Court of Justice (including the Family Court branch where applicable).
Important Difference: Equalization vs. Unjust Enrichment
It is important to distinguish between these two concepts:
Equalization
- Available only to married spouses in Ontario.
- Governed by the Family Law Act.
- Does not apply to common-law relationships.
Unjust Enrichment
- Available to married and unmarried partners in appropriate circumstances.
- Requires proof of enrichment, corresponding deprivation, and absence of a legal reason for the benefit.
- The remedy depends on the facts of the case.
Practical Consideration
For common-law partners, the length of the relationship alone does not create property rights. The focus is not on how many years the parties lived together, but rather on the actual contributions made by each partner and whether retaining the benefit would be unfair.
A person considering such a claim should carefully assess:
- The nature and value of their contributions;
- The assets involved;
- The remedy they are seeking;
- The appropriate court jurisdiction before commencing proceedings.
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Every case depends on its specific facts, evidence, and applicable law. The information contained in this article should not be relied upon as a substitute for obtaining independent legal advice from a qualified legal professional regarding your particular circumstances.
Adel Zarei
Dual-Qualified Legal Professional
Licensed Paralegal (Law Society of Ontario)
Senior First-Class Attorney at Law (Iranian Bar Association)
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