In Ontario, couples who are not married and are living as common law can apply for their properties to be divided when they separate from each other. The law and the process for them is different from a married couple and can get quite complex because the couples may have to provide extensive accounting of which of them did what and who paid for what during their common-law relationship. This accounting exercise can go back 10–20 years. Often, it is difficult to determine the intent of the couple regarding the purchase and sharing of property many years after the relationship has begun.
The court will look at whether there is a “joint family venture” during property division for common-law couples.
In determining whether or not a joint family venture exists, the following factors should be considered, although not exhaustive:
- Mutual effort: Have the parties worked together toward a common goal? This may include consideration of the pooling of efforts and teamwork, the decision to raise children together, and the length of the relationship.
- Economic Integration: The more extensive the integration of the couple’s finances, economic interests, and economic well-being, the more likely it is that they should be considered as having been engaged in a joint family venture.
- Actual Intent: Did the parties intend to form a joint family venture? These intentions may be stated or inferred by the parties’ actions. Did the parties hold themselves out as being “equivalent to married?” Was the relationship long and stable?
- Priority of the Family: Did the parties plan for their financial future together? Did one party give up his or her employment for the common financial future of both of them or to raise children? Is one party left in a worse position than he or she otherwise would have been if he or she had not acted in a way to assist the family to his or her financial detriment?
- Mutual Benefit Conferral: In determining whether or not there has been unjust enrichment given the mutual exchange of benefits, the respective contributions of the parties are taken into account in determining the claimant’s proportionate share. This weighing of benefits is not an exact science. It calls for the reasoned exercise of judgment in light of all the circumstances.
Once the joint family venture is established, courts must then define the remedy, which may be monetary compensation or percentage interest in the joint family venture. Courts still have significant discretion in terms of the appropriate remedy. For instance, if a percentage interest in the joint family venture is awarded to a common-law spouse, such percentage may be anywhere from 1% to 100%, depending on the evidence and the particular circumstances of the case.
Here is a typical example. A common-law couple lived together for 10 years. The house is in man’s name. The woman gave up employment, raised the children, helped with renovations, etc. Although the home is in the man’s name, the woman may claim an interest in it as a result of her contributions to the family and the property. In other words, the home is a “joint family venture.”
Ken Nathens is a partner in the law firm of Nathens Siegel, a Toronto firm that restricts its practice to divorce and family law issues. Ken has experience in all aspects of divorce and Ontario family law and devotes much of his time to assisting clients with custody and access disputes.
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