To marry or not?

Law360 Canada (July 15, 2025, 3:06 PM EDT) --

Pamela Cross

Because family law in Canada is regulated at both the federal and provincial/territorial levels, some inconsistencies exist from one part of the country to another. For example, not all provinces and territories have made changes to their statutes to align them with the 2021 changes made to the federal Divorce Act provisions dealing with child-related issues, meaning families have access to different legal regimes depending on where they live.

This lack of consistency also plays out with respect to how common-law relationships are treated; in particular, with respect to property division and access to exclusive possession orders. Some provinces and territories include common-law partners in their definition of spouse for the purposes of property division and some do not. (Quebec’s Civil Code does not recognize common-law partnerships.)

In six provinces and territories — Alberta, British Columbia, Manitoba, Northwest Territories, Nunavut and Saskatchewan — people in common-law relationships are treated as though they are married unless they take the step of opting out through a domestic contract.

Two provinces — Nova Scotia and Manitoba — have legislation allowing people to register a domestic partnership, in which case they are covered by their province’s matrimonial property division scheme. (In Manitoba, people can register their domestic relationship or wait until they have lived together for three years in order to have access to the property regime that applies to people who are married.)

In five provinces and territories — Newfoundland and Labrador, New Brunswick, Ontario, Prince Edward Island and Yukon — only people who are legally married have access to family property division legislation, unless they opt in by signing a domestic contract in which they agree to be governed by that legislation.

Lack of knowledge

Whether people are married or living common law with their partner, many are ill-informed about what rights and responsibilities they have under the laws of the jurisdiction where they live. For example, they may assume, if they are in a common-law relationship, that after a certain period of time they have all the same rights and responsibilities as they would if they were married. Or, if they are married, they may believe that they will not have to share the value of the matrimonial home with their spouse because they bought and paid for it before the marriage.

Whichever way the misunderstanding lies, it can lead to shock as well as significant economic hardship at the end of the relationship.

Domestic contracts — whether in the form of a cohabitation agreement or a marriage contract — provide a relatively simple means for people to set the terms of their relationship, including what to do if it ends. And yet, people have seemed resistant to this idea, perhaps thinking it is unromantic or untrusting to ask a future partner to sign on the dotted line about how they will manage money and property in their relationship.

That attitude may be changing: a February 2025 poll showed that 52 per cent of Gen Z — compared to 31 per cent of the general population — want their partner to sign a domestic contract. What the poll doesn’t tell us is how many of them actually do.

Equalizing relationships

Eliminating the legal differences between the rights and responsibilities of people leaving common-law and married relationships would even the playing field and provide less room for one partner to manipulate or even abuse the other over financial and property matters.

Ontario’s Law Reform Commission (OLRC) looked at this issue in 1993 and concluded that the definition of “spouse” in Ontario’s Family Law Act (FLA) should be expanded to include common-law partners, once people had lived together for at least three years or were in a relationship of some permanence and had a child together.

The OLRC cited a number of reasons for making this change: preventing discrimination on the basis of marital status; the unconstitutionality of excluding unmarried couples from the FLA other than with respect to support obligations; the functional similarities between people in married and common-law relationships; and making legislation align with people’s reasonable expectations.

While more than 20 years has passed since this report was written, the OLRC’s reasons remain valid today. With nearly one-quarter of intimate relationships now common law, it’s time that people in those relationships had access to the same legal regime as those who are married.

Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law. One of her key roles is as the legal director of Luke’s Place in Ontario.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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