Is there a Common Law Act?

Many people coming to my office for their first time who are living with another person tell me that there is a common-law statute which gives them full rights to property and support after two years. Some people say it kicks in after one year; some people say after two or three years. There is no common-law statute. The right to spousal support in a common-law relationship only arises after three full years of cohabitation or a shorter period of time if it is a relationship which has produced a child. It is not enough for it to be a casual relationship: it would have to be truly common-law, with some type of permanence to the relationship and a child as the result. However, a child is entitled from the minute of its birth to child support from its parents.

There is no entitlement to share property in common-law situations. The Supreme Court of Canada stated in a case called Walsh v. Bona that if you want property rights, you get married.

The only way to obtain a share of property in a common-law situation is to show contribution that exceeds, for instance, in the case of a house, more than mere rent being paid. Helping to pay off a mortgage or doing renovations would qualify, but you would need to show proof that this occurred.

This could lead to an entitlement to a share of property based on various trust doctrines which come from the old church courts or ecclesiastical courts which include the doctrine of unjust enrichment; in effect, it is not right that someone keep the fruits of another person’s labor without compensation, or reimbursement for the value of work done on money provided.

Property rights in common-law situations are never simple or clear cut, and you should consult a family lawyer.

Judith Holzman is a collaboratively trained family lawyer who has practiced for over 33 years in the Toronto and York Region area. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce.