If you’re in a common-law relationship, what happens to your property and benefits if you separate, or if one of you dies? How do you settle your debts? Who will care for your children? To help you with this, here are some of the most frequently asked questions:   

1. We’re not married. What happens to our pensions if we separate?

Partners in a common-law relationship do not have a legal right to share in the value of each other’s pensions. When they separate, the pension plan member normally keeps the full value of the pension. They must share in the value of their pension only if they have an agreement, court order, or arbitration award that says they must do so.

2. We’re not married. What happens to CPP benefits if we separate?

If you and your partner lived together for at least one year, you can apply to Service Canada to have the CPP credits that you both earned during this time added up and then divided evenly. Sometimes this process is referred to as “dividing CPP credits”, a “credit split”, or a “Division of Unadjusted Pensionable Earnings”.

3. We’re not married. What happens to CPP benefits if one of us dies?

You may qualify for another benefit called a CPP survivor’s pension if your partner made enough contributions to the CPP pension plan. To potentially qualify requires that, at the time of your partner’s death:

  • you had been living together for at least one year, and
  • you are at least 35 years old at the time of your partner’s death, or you are younger but have a disability or have dependent children living with you

4. We’re not married. What happens to our property if we separate?

Usually, each common-law partner keeps:

  • the property they had when they started the relationship
  • the property they acquired while they were living with their partner

Typically, real estate or other substantial assets jointly owned are split 50-50. But you can make a claim for property owned by your partner in some situations. At HNPC, we can provide you with more information about this.

5. We’re not married. What if we can’t agree on what happens to our property after we separate?

When an agreement can’t be reached, you can ask the court to make an order to divide your property. You have a time limit of six years from the date of separation to make a claim for a share in property that is not real estate. This could be a share in your common-law partner’s business or car.

6. We’re not married. What happens to my partner’s property if they die?

If your partner had a valid will, you are entitled to what your partner left you in that will. If your partner didn’t have a valid will or didn’t make a will, then “intestacy rules” determine who inherits the property. Common-law partners do not receive anything under these rules. Your partner’s property is inherited by their children, or by other relatives if they had no children.

You might be able to make a claim to your partner’s property in some situations. At HNPC, we can explain what makes a will valid, and what situations might enable you to make a claim to your partner’s property.

7. We’re not married. Who gets to stay in our home if we separate?

You and your partner can reach an agreement about who stays in the home, even if only one of you is the legal owner or tenant. Both of you can also continue to live there. You don’t need to live separately to legally separate.

If you and your partner both own the home:

  • one of you can buy the other’s share in the home
  • you can sell the home and share the money from the sale

8. We’re not married. What happens to our debts if we separate?

In most circumstances, each partner is responsible for paying their own debts, unless you’ve reached an agreement regarding who will pay which debts. If you co-signed a loan agreement, you’re both responsible for repaying that debt.

9. We’re not married. What happens to our children if we separate?

When it comes to caring for children, common-law couples have the same rights and obligations as married spouses. These rights include parenting time (formerly called “custody”) of children and obligations to financially support them. In cases where the parents cannot agree on parenting time, the courts will step in and pass a decision based on the best interests of the children.

10. We’re not married.  I’m a permanent resident, but not a Canadian citizen. Will I be forced to leave Canada if my partner and I separate?

No. If you’re a permanent resident, you will not lose your status or be forced to leave Canada because you separated from your partner. This will be upheld even if your partner sponsored your application for permanent residence.

Call us to learn more

At Howard Nightingale Professional Corporation, our team can manage all of your common-law separation issues, including property division, debt settlement, care of children, and survivor benefits if one partner dies. We provide the personal attention and dedicated focus of a small law firm.

Please contact us to schedule an initial consultation at our Toronto office at 416-663-4423 or toll free at 1-877- 224-8225.

We’re here to support you in your time of need.

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