Some family lawyers in Ontario are calling for changes to provincial legislation that treats people living outside of family law differently than married couples when their relationship ends.
Although the Ontario Family Law Act states that all property acquired by a couple during their marriage must be divided equally, except in a few exceptional circumstances, if they divorce, this provision does not apply to married couples.
As a result, people in civil relationships in this province often have to resort to the time-consuming and expensive process of going to court to get their fair share of property.
Other provinces have amended their laws to give divorcing spouses the same property rights as married couples.
The calls for Ontario to change come as new census data shows 23 per cent of Canadian couples live outside of family law, the highest rate among the G7 countries.
Toronto-based family lawyer Ken Natens says the disparity in rights between civil and married couples is an important issue and he wants to see the provincial government move forward with changing the legislation.
Family lawyer Russell Alexander says Ontario’s property division laws, which apply to married couples when they divorce, should apply equally to common-law spouses. (Charity Lemon)
“What would be a simple thing for married couples — just a 50-50 house split — turns into a three- or four-day court battle for married couples, which is very expensive and certainly doesn’t help the parties move forward.” Nathans told CBC Radio’s Ontario Today.
“If you’re a common law citizen and one spouse owns the house to the exclusion of the other, the second spouse has to prove all of their contributions to that property, so you end up in a crazy litigation,” Natens said.
Family lawyer Russell Alexander also says property division laws that apply to married couples in Ontario should also apply to married couples.
“In my opinion, justice would require it. I think the Legislature needs to step in,” said Alexander, founder of Russell Alexander Collaborative Family Lawyers.
“Ordinary couples [in Ontario] they don’t enjoy those same legal rights and obligations, so they have to go to the courts when they separate to try to get what they feel is their fair share of the property,” Alexander told Ontario Today.
He credited the courts for making decisions that fairly divide property between spouses when they divorce, but felt the provision needed to be clarified in legislation.
Emma Katz, a Toronto family lawyer and associate at the law firm of Kelly D. Jordan, says it’s “having a discussion about how and when [common-law] couples must share their wealth. (Submitted by Emma Katz)
Emma Katz, an associate at Kelly D. Jordan Family Law in Toronto, says many people in Ontario have the misconception that a civil partnership means the same as marriage when it comes to property rights.
Ontario law makes dividing property between married spouses when they separate much less complicated, clearer and easier to settle without lengthy litigation than common-law spouses, Katz told CBC Radio’s Metro Morning.
“We have a pretty random scheme [in Ontario],” Katz said. “You have some people who have been in relationships for more than 30 years and are not married, and they are not subject to the same rights. So I think it’s time to discuss how and when [common-law] couples should share their wealth.”
British Columbia changed its law in 2013 to mandate a 50-50 division of assets between civil couples, largely to reduce the time those couples had to spend in court, said Dennis Whitehead, chair of the Sexuality, marriage and family studied at the University of St. Jerome at the University of Waterloo.
Whitehead said it would be good for Ontario’s family law to be unified in its approach to married and common-law couples to simplify the process and ensure all spouses are aware of their rights and responsibilities.
CBC News asked Attorney General Doug Downey on Friday whether the government is reviewing the Family Law Act or wants to change its provisions on property rights for married couples.
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In response, Downey’s press secretary Natasha Krstaich issued a statement pointing out how the property provisions in the current law only apply to married spouses.
“This reflects the reality that common law relationships vary widely and are entered into in a wide range of circumstances,” Krastaich said.
She added that the government introduced some legal reforms in 2020 to “make it easier, faster and more affordable for individuals and families to resolve family law matters”. However, they do not affect the provisions on the property rights of common-law spouses.
In 2011, the then-Liberal government changed Ontario’s rules to give divorcing couples mediation options and require them to attend an information session about alternatives to going to court.
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