Living common law is very different from being married, and one important difference is that common law couples do not have a matrimonial home. Married couples cannot kick each other out of the home (or homes) in which they live.
Aside from the ability of common-law couples to get Family Law Restraining Orders against each other (see the criteria for restraining orders on this page), they do not have any additional rights than other “roommates”, “co-tenants” or “boarders.” In Ontario, being common law does not give partners rights to each other’s property. Even the restraining order may not permit the non-owner to kick out the owning spouse. The restraining order does not block the common-law partner who owns the house from making an application to the Landlord and Tenant Board to have the non-owning partner removed. A judge may not grant a restraining order against a common-law partner to keep that partner out of his or her own property.
However, if one common-law spouse does kick out the other, the “kicked-out” spouse should be in a position to secure alternative accommodations. If, after a long-term relationship in which the parties lived together, a common-law spouse kicks out the other and cuts off access to money that the kicked-out partner needs, a court will be quick to make an award for spousal support, and a Judge may feel inclined to make that a large award to ensure that lifestyle does not change for the kicked-out partner. However, spousal support can be a tricky issue, so it is best to talk about your case with a good family law lawyer.
A non-owner common-law partner may also be able to claim to be a part owner of the home after 21 years. If a court found that the non-titled partner is a part owner, that partner could also get an order permitting him or her to stay in the house, at least until it is sold. But, that is a very complex, and often difficult, case to make. So you really have to speak to a lawyer about it.
This is certainly a difficult situation. There may be other things you could do, which you can only find out by discussing over your situation in detail with a good family lawyer. In all cases of domestic violence, it is always get the help of a lawyer to level the playing field and make sure no one makes a bad decision because of threats or intimidation.
However, to make sure your rights as a common-law spouse are protected, you really should speak to a top family law lawyer. John Schuman is a Certified Specialist in Family Law practicing in Toronto and throughout the GTA and Ontario. You can reach him using the phone number at the top of the page, or the contact form below. You can also use the contact form to comment on this post.
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