- The Family Law Act's equalization of net family property applies only to married spouses — common-law partners have no automatic entitlement, regardless of how long they lived together.
- Common-law partners instead rely on equitable remedies — primarily unjust enrichment claims — to seek a share of property accumulated during the relationship.
- The leading case, Kerr v. Baranow, 2011 SCC 10, established the “joint family venture” framework for assessing these claims.
- The joint family venture analysis looks at mutual effort, economic integration, actual intent, and priority of the family to determine an appropriate proportionate-share remedy.
- The 3-year cohabitation threshold (or shorter with a child) applies to spousal support eligibility only — it has no bearing on property rights, which depend entirely on the unjust enrichment analysis.
- A cohabitation agreement is the most reliable way for common-law partners to establish clear, predictable property rights in advance, rather than relying on litigation after the fact.
The Short Answer
No, not automatically. Married spouses in Ontario get automatic equalization of net family property. Common-law partners get no such automatic right, regardless of relationship length — instead, they must build a case using the law of unjust enrichment to claim a share of property accumulated during the relationship.
No Automatic Equalization for Common-Law Partners
The Family Law Act's equalization of net family property provisions — the mechanism that generally results in one married spouse making a payment to the other reflecting the growth in wealth during the marriage — applies only to married spouses. This is a deliberate legislative choice, and it surprises many common-law couples who assume years of cohabitation function similarly to marriage for property purposes. It doesn't.
The Alternative: Unjust Enrichment
Instead of automatic equalization, a common-law partner seeking a share of property must bring an unjust enrichment claim — a general equitable doctrine, not specific to family law, that addresses situations where one person has been enriched at another's expense without a legal reason justifying it.
Kerr v. Baranow: The Joint Family Venture Framework
In Kerr v. Baranow, 2011 SCC 10 (decided alongside the companion case Vanasse v. Séguin), the Supreme Court of Canada clarified how unjust enrichment claims work for former common-law partners. The Court established the “joint family venture” framework — where a genuine joint family venture is shown, and there's a link between one partner's contributions and the accumulated family wealth, a proportionate share remedy is generally more appropriate than simply returning specific contributions.
The Four Factors Courts Consider
- Mutual effort — did both partners contribute to building their life and assets together?
- Economic integration — were finances pooled, joint decisions made, lives economically intertwined?
- Actual intent — what did the partners actually intend regarding property and their relationship?
- Priority of the family — did the partners prioritize their shared family life in the way they structured their finances and decisions?
A couple lives together for 12 years, pooling income into joint accounts, jointly paying down a mortgage on a home registered solely in one partner's name, and raising children together. On separation, the non-titled partner can bring an unjust enrichment claim, using the joint family venture framework to seek a proportionate share of the home's value — despite having no automatic right to it the way a married spouse would.
Don't Confuse This With Spousal Support Rights
Under FLA section 29, a person qualifies as a “spouse” for support purposes after 3 years of continuous cohabitation, or in a relationship of some permanence where they are parents of a child together. This threshold applies only to spousal support — it has no bearing on property rights whatsoever. Property claims depend entirely on the unjust enrichment analysis described above, regardless of how long the couple cohabited.
How to Protect Yourself
Given the uncertainty and fact-intensive nature of unjust enrichment claims, a cohabitation agreement — entered into with independent legal advice for both partners — is the most reliable way to establish clear, predictable property rights in advance, rather than relying on potentially lengthy and uncertain litigation if the relationship ends. See our guide on cohabitation agreements in Ontario for more detail.
Common Mistakes
It doesn't — there's no automatic equalization, regardless of how long the relationship lasted.
That rule applies to spousal support eligibility only — property claims follow an entirely different framework.
A well-documented history of contributions strengthens an unjust enrichment claim significantly if the relationship later ends.
This is the clearest way to avoid uncertain, potentially costly litigation over property when a common-law relationship ends.
Ending a common-law relationship with property to sort out? Call our Toronto family lawyers at 416-274-2222 for a free consultation.
Frequently Asked Questions
No. The Family Law Act's equalization of net family property applies only to married spouses. Common-law partners have no automatic right to division of property in Ontario, no matter how long they lived together.
Through an equitable claim, primarily unjust enrichment, rather than the automatic equalization process available to married spouses. Courts assess these claims using the "joint family venture" framework established by the Supreme Court in Kerr v. Baranow.
Established in Kerr v. Baranow, 2011 SCC 10, it's a framework for assessing unjust enrichment claims between former common-law partners, looking at mutual effort, economic integration, actual intent, and the priority given to the family unit, to determine whether a proportionate share of accumulated wealth is an appropriate remedy.
No — that threshold applies specifically to spousal support eligibility under the Family Law Act, not property rights. Property claims for common-law partners depend entirely on the unjust enrichment analysis, regardless of how long the couple cohabited.
It refers to the extent the couple pooled finances, made joint decisions, and built their lives together economically — a jointly held mortgage, shared bank accounts, and interdependent financial decision-making are the kinds of facts courts look at under this factor.
Potentially, yes, through an unjust enrichment claim if the joint family venture framework supports it — but this requires building a case, unlike the automatic inclusion of the matrimonial home for married spouses under the FLA.
A cohabitation agreement, entered into with independent legal advice, is the most reliable way to establish clear property rights in advance, rather than relying on a fact-intensive unjust enrichment claim after the relationship ends.
Strongly recommended. Unlike the more formulaic equalization process for married spouses, unjust enrichment claims are fact-intensive and outcome depends heavily on the specific circumstances of your relationship.