Common-Law Property Rights in Ontario: What Happens Without a Cohabitation Agreement

Quick Overview

Common-law couples in Ontario get none of the automatic property-splitting rules married spouses have. Property generally just stays with whoever’s name is on it
Without a cohabitation agreement, a partner who contributed money or unpaid labour toward property owned by their partner has to make a legal claim called unjust enrichment to get anything
A doctrine called the joint family venture can entitle a partner to a real share of accumulated wealth, not just repayment for labour performed
The matrimonial home protections married spouses get, the automatic right to stay and the requirement for consent before a sale, don’t apply to common-law couples at all
Spousal support is available to common-law partners after three years together, or sooner if they share a child and are in a relationship of some permanence, but that’s a completely separate right from any claim to property
If a common-law partner dies without a will, the surviving partner inherits nothing automatically and has to make a claim against the estate, generally within six months

The Default Rule Without an Agreement: Title Decides Everything

If a common-law relationship ends and there’s no cohabitation agreement in place, the starting point is blunt. Whoever’s name is on the title or the account owns the asset, full stop. Ontario’s automatic equalization scheme for married spouses, the formula that generally splits the financial gains of a marriage in half, is written into the Family Law Act using a legal definition of “spouse” that simply doesn’t include common-law partners. It doesn’t matter how long the relationship lasted or how financially intertwined the couple became. Without something in writing, or a successful court claim, property just stays where the title says it is.

What a Partner Without Title Can Actually Do

This is where things get more complicated, and where most common-law property disputes actually end up. A partner who isn’t on title, but who contributed financially or through years of unpaid labour, isn’t left with nothing, but they do need to prove a claim called unjust enrichment.

The Supreme Court set out the modern test for this in Kerr v. Baranow, 2011 SCC 10, which also formally closed the door on the “common intention” resulting trust, an older legal theory that courts used to rely on for these disputes. The Court limited that comment to the common intention resulting trust and did not address other aspects of the law of resulting trusts. Under the current test, a claimant has to prove three things: that the other partner was enriched, that the claimant suffered a loss that corresponds directly to that enrichment, and that there’s no legal reason justifying the other partner keeping that benefit without paying for it. Importantly, the enrichment doesn’t have to be money. Kerr v. Baranow made clear that unpaid domestic labour, childcare and homemaking, the kind of work that lets one partner focus on paid employment while the other manages the household, counts as a genuine, compensable contribution.

Getting a Real Share, Not Just Repayment

Proving unjust enrichment used to lead to fairly modest awards. Courts would essentially calculate what a housekeeper would have been paid and award that amount minus free rent. The Kerr v. Baranow decision changed this dramatically by introducing something called the joint family venture doctrine, which lets a court award a share of the actual wealth the couple built together, rather than just a wage for labour performed.

To qualify, a court looks at the relationship through four lenses: whether both partners genuinely pooled effort toward common goals, how integrated their finances actually were, whether their conduct reflected a real partnership, and whether one partner made significant sacrifices, such as career, education or financial security, for the sake of the family. No single factor decides it, and separate bank accounts alone don’t automatically defeat a claim if the money was still being used for shared benefit. Once a joint family venture is established, the claimant also has to show a real connection between their contributions and the wealth that actually got built, whether that’s direct financial input or indirect support, like covering groceries and childcare so the other partner’s income could go toward a mortgage instead.

A recent Ontario case, Galbraith v. Kinsley, 2023 ONSC 3332, illustrates how this plays out in practice. A woman who never wanted to marry, and who maintained separate bank accounts but split household expenses with her partner, still successfully established a joint family venture after ten years together and three children. The court found that the couple had integrated their economic lives, and that her assumption of nearly all domestic labour freed her partner to work and build equity in a home held solely in his name. The award was a monetary one on a value-survived basis, not a share of title.

Money First, Ownership Second

Even after proving all of this, courts generally prefer to award money rather than an actual ownership stake in a specific property. A share of title, through what’s called a constructive trust, only gets granted when a monetary award genuinely wouldn’t be enough, for example if the other partner doesn’t have the cash to pay, or there’s a real risk they’ll hide or dispose of assets before a judgment can be enforced.

The Family Home Is Where the Gap Really Shows

This is genuinely one of the starkest differences between married and common-law couples in Ontario. Married spouses get powerful, automatic protections around the matrimonial home, an equal right to live there no matter whose name is on the title, and a requirement that both spouses consent before it’s sold or mortgaged. Common-law partners get none of that, regardless of how many years they lived there together.

If the home is owned solely by one partner, the other is legally treated as little more than a guest with permission to stay, permission that can be revoked. There is no common-law equivalent to the exclusive possession order available to married spouses under section 24 of the Family Law Act. What is available is a restraining order under section 46 of the Act, which is open to anyone who has cohabited with the applicant for any period, and interim relief sought as part of an unjust enrichment or trust claim. Neither is guaranteed. If the home is jointly owned by both partners, neither can be evicted by the other, but if one wants to sell and the other refuses, the dispute gets resolved under Ontario’s Partition Act rather than family law, generally resulting in a forced sale with proceeds split according to the ownership shares on the title.

Support and Property Are Two Completely Separate Questions

It’s worth being clear about something that trips people up constantly. Common-law partners do become eligible for spousal support after living together continuously for three years, or sooner if they have a child together and are in a relationship of some permanence. But qualifying for support doesn’t create any automatic right to property. These are entirely separate legal tracks under the Family Law Act, and winning one doesn’t mean anything for the other.

What Happens If a Partner Dies Without a Will

This deserves real attention because it’s an area people consistently underestimate. If a common-law partner dies without a will, Ontario’s intestacy rules under the Succession Law Reform Act give the surviving partner absolutely nothing automatically. The entire estate flows instead to children, parents, or other legally defined relatives, regardless of how long the relationship lasted. A surviving common-law partner has to actively pursue a claim against the estate, either a dependant’s support claim, or the same kind of unjust enrichment argument used in a separation.

A dependant’s support claim has its own threshold. Under section 57 of the Act, the surviving partner must first meet the Act’s definition of spouse, which means three years of continuous cohabitation, or a child together and a relationship of some permanence. The deceased must also have been providing support, or been under a legal obligation to do so, immediately before death.

Dependant’s support claims generally need to be filed within six months of the estate trustee’s certificate being issued, a tight window that’s easy to miss during an already difficult time. Under section 61(2), however, the court has discretion to allow a late application against any portion of the estate that has not yet been distributed.

How Common This Situation Actually Is

This isn’t a fringe scenario. Statistics Canada’s 2021 Census, released in July 2022, shows that common-law relationships have grown enormously in recent decades, now accounting for roughly a quarter of all couples nationally, and around 15 to 16 percent of couples in Ontario specifically. The number of common-law couples in Canada has grown by several hundred percent since 1981, far outpacing the growth in marriages. A meaningful share of Ontario households are living under exactly this legal framework without necessarily realizing how different it is from what married couples get (Statistics Canada).

If You’re in This Situation

Anyone navigating the end of a common-law relationship without a cohabitation agreement is dealing with a genuinely more complex, fact-driven legal process than a married couple would face, proving contributions, establishing intent and tracing wealth back to specific efforts. LMS Lawyers works with Ottawa-area clients through exactly these disputes, and getting proper legal advice early, before assumptions harden on either side, tends to make a real difference in how these claims are ultimately resolved.

FAQs

Do common-law partners automatically split property when they separate?
No. Property generally stays with whoever holds legal title. A partner without title needs to prove a claim called unjust enrichment to get any share.

Can a common-law partner get thrown out of a home they don’t own?
Yes, if the home is solely owned by the other partner. Common-law partners don’t get the automatic right to stay that married spouses have.

Does living together for a long time eventually create automatic property rights?
No. Duration alone doesn’t create ownership rights, though it can support an unjust enrichment or joint family venture claim if other factors are present.

Is spousal support the same as a property claim for common-law partners?
No, they’re completely separate. Qualifying for spousal support after three years together, or sooner with a child and a relationship of some permanence, doesn’t create any automatic right to share in property.

What happens if my common-law partner dies without a will?
You don’t automatically inherit anything. You would need to file a claim against the estate, generally within six months of the estate trustee’s certificate being issued, although a court can allow a late application against any part of the estate that hasn’t been distributed.

Summary

Without a cohabitation agreement, property division for common-law couples in Ontario follows legal title by default, not an automatic equal split. A partner without title has to prove unjust enrichment, and can potentially claim a genuine share of accumulated wealth through the joint family venture doctrine, though courts generally favour a monetary award over an actual ownership stake. The matrimonial home protections married spouses receive don’t extend to common-law couples at all, and spousal support eligibility is a completely separate legal question from property rights. If a partner dies without a will, the surviving partner has no automatic inheritance and must act quickly to file a claim against the estate.

Sources

This article is intended for general information purposes only and describes Ontario law as of October 2026. It does not constitute legal advice and does not create a lawyer-client relationship between LMS Lawyers and the reader. For advice specific to your situation, please consult a licensed lawyer.