29 - Common Law Separation and Property Division | Ontario Family Law Podcast

29 - Common Law Separation and Property Division

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Ontario Family Law Podcast

29 - Common Law Separation and Property Division

One of the most frequent mistakes people make about Ontario Family Law is thinking that becoming common law is exactly the same as being married. However, as discussed in previous episodes of this podcast, that is just simply not the case. Being common law is very different from being married. One of the biggest ways that it is different is with respect to property division. If you are common law do NOT assume everything is divided 50/50.  Sometimes, property division between common law couples can seem like the Wild West.  In some ways, it is.  This podcast gives an in-depth, comprehensive, explanation of how common law couples can divide their property when the relationship ends, and how they do not.  It also explains other Family Law remedies that can help out when the property division is unfair. 

Family Law Act in Ontario Definition of Spouse: “spouse” means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
Common law couples do not equalize their property when they separate under Ontario Law!


This episode of the podcast is, in part, a live recording of a seminar on the topic of mistakes that common law couples make when separating.  Their are slides that assist with the understanding of some of these complex topics. On the iTunes version of the podcast,  the “slides” will appear on your screen while you listen.  Those slides are also shown to the left of this text if you are listening to this podcast through the webpage on your desktop.  If you are listening through the webpage on your mobile device, look for the slides below.

Long before “family law” • There was a recognition that sometimes the law was not fair • Courts of Law could not always “do justice” • Courts of Equity “did fairness”
Then in 1881... • The Ontario Judicature Act merged the Court of Chancery and the Ontario Supreme Court (now Ontario Superior Court of Justice • One court could apply the Law, and the Rules of Equity • When the law was unfair, the same court could fix it using the Rules of Equity” • This applies to everyone – not just family law litigants


Being common law, instead of married, can make property division much more complicated on separation.  One partner may have no entitlement in law to share in anything that the couple accumulated during their relationship. But, the partner who just “walks away” may be giving up too much. If you have, or are about to, separate from your common law spouse, listen to this podcast and then speak to a family law lawyer to determine your rights and obligations in your particular circumstances. 


Is “Equity” the Law? • Equity came about because the law was unfair • Originally just based on fairness • But the Courts of Equity developed Rules

For more information about what it means to be “common law” in Ontario, check out episode #20 of this podcast: “What Living Common Law Means (and What It Doesn’t.”

Legal Title Can be Unfair • Sometimes “legal title” is in on person’s names • But the idea that both people would contribute to the asset and both would share in it • Sometimes one party gives up other opportunities are helps the owner believing he or she will be rewarded
Correcting Unfairness From Contribution • Special property • One side taking advantage of the other to hold legal title or to be otherwise “enriched” • The other side being deprived • There being no juridical reason for one side to be “enriched”


Thousands of people tune into the Ontario Family Law Podcast every month to get valuable pointers on family law, divorce and separation issues.  It is also available on iTunes.  The Ontario Family Law Podcast is a companion to this easy-to-understand book on the Basics of Ontario Family Law, which is also available as a $9.99 ebook from Amazon (Canada) and Kobo or as and iBook for iPad, iPhone or Mac  For a more comprehensive explanation to family law issues, and a guide to Ontario’s Family Courts, download a copy immediately, or order a copy from Amazon, or request it at your favourite bookstore.

There are rules in Equity • It is not the Wild West • There are rules – Equity does what ought to be done – Equity will not allow a wrong without a remedy – Equity follows the law – The Claimant must come to court with clean hands – Equity will not help the lazy – Etc. etc. etc. etc.
Kerr v. Baranow, 2011 SCC 10 • Do not just have to contribute directly to an asset: – Mutual effort (did the couple intend to grow the business and divided the family money accordingly) – Economic integration – Parties intended to share – Did one party sacrifice to allow the other, or the family, to succeed?


The host of the Ontario Family Law Podcast, John Schuman, is a Certified Specialist in Family Law and Divorce Trial Lawyer, mediator, arbitrator and collaborative lawyer, practicing in Toronto at Devry Smith Frank LLP, which is a full service law firm with several excellent lawyers in family law.  If you would like to contact John Schuman, either call 416-446-5847, email him or fill out form below and click “send.”  We respond promptly whenever someone contacts us.  

Other equitable remedies (trust) • Express trust • Resulting trust – Presumed where one spouse buys property for the other – Can give something away to defeat creditors • Quantum Meruit
Other Remedies That Might Be Better • Spousal Support – Recognizes economic impact of relationship and its breakdown • Equalization for Married Couples – Makes trust claims more difficult – but not impossible
Guide to the Basics of Ontario Family Law, 3rd Edition


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May 17, 2015 at 11:28 AM
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