In Ontario, the process for common-law partners to achieve spousal support upon a separation can be stressful and complicated. Common law partners do have rights when it comes to spousal support but the process of proving eligibility can be complicated. Here we outline what relationships are considered common-law and the eligibility criteria for spousal support. However, reaching out to an experienced family lawyer can help you understand your rights for spousal support in Ontario for common law partnerships.
Spousal support in Ontario is usually the money paid by a spouse with a higher income to the spouse with a lower income after a separation, or divorce, for a variety of reasons. These include helping a spouse become financially self-sufficient, preventing the spouse from experiencing financial hardship due to a relationship breakdown, sharing the cost of children and maintaining a standard of living in both households, or compensating the spouse for a financial disadvantage during the relationship. However, with common law relationships, the separation and order of spousal support are more complicated due to the lack of legal protections that marriage affords couples.
In Canada, common law couples are not eligible to receive a divorce under the federal Divorce Act, because they are not legally married. This means upon separation, there is no automatic entitlement in some cases and the parties may be required to prove entitlement. Without taking steps to create a legal agreement before a separation, as a common-law partner you will be required to prove your eligibility for spousal support. While common-law relationships are not entitled to the same rights as a marriage, there are still rights and responsibilities that are legally recognized in Ontario for common-law partnerships.
In Ontario, there are certain requirements to be considered a legal common-law couple. This provides both partners with legal rights and responsibilities and aids in the determination of eligibility for spousal support. The two requirements are as follows:
1. Lived together for a minimum of three years, or
2. Have a child together.
If either of these is true, the partnership would afford either partner rights such as spousal support should they meet further eligibility criteria. If you are unsure if your partnership is considered common law in Ontario, speaking with a lawyer can help with your unique circumstance.
How do I qualify for common law spousal support?
In Ontario, to receive spousal support for both common law and married couples certain requirements must be met. After determining if your common law relationship meets the legal requirements of common-law in Ontario, to apply for spousal support you will need to demonstrate at least ONE of three requirements to establish entitlement.
- You had responsibilities while in the relationship that prevented you from building a career and therefore suffered an economic loss.
- The separation left you in need of financial support and the other spouse has the required means to provide such support. Meaning, you became dependent on the relationship.
- You have a legal agreement that entitles you to spousal support.
Once this is established the entitlement and amount of spousal support will be determined either in a separation agreement or by a judge. Speaking with a lawyer can help you determine how much you are entitled to and navigate the spousal support payment process for Ontario common law partners.
Separation agreement or court appointed spousal support
Gaining spousal support in Ontario upon a separation is not an immediate process. There are two methods for gaining spousal support for both common-law and married couples in Ontario. The first is to negotiate a separation agreement that includes spousal support payments. This requires both partners to agree to the amount and terms of separation. If this is not possible, the second method for gaining spousal support requires a judge to review the relevant proof of entitlement of spousal support. The judge will then determine the amount to be paid and period of payment should spousal support be appointed. This calculation is typically done with what is known as the Spousal Support Advisory Guidelines (or SSAGs) and this becomes evidence that is presented to a judge, or decision maker.
In both cases, the amount of spousal support paid to one partner depends on a variety of factors which will vary between common-law partnerships. Some things that will be considered are large differences in income, children, ages of the partners, length of the relationship, the roles of partners in the relationship, health, and ability to support oneself. This amount can be calculated within a separation agreement, however, if the amount cannot be agreed upon between partners, a judge will decide the amount of spousal support. In both cases an experienced lawyer will help you navigate the complicated process of gaining spousal support as a part of a common-law partnership.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.