How to Take Title - Part Two for Common Law and Same-Sex Couples

Rachel in Legal, Home Buying
 

My previous post on taking title did not address the title-related issues in the fairly common scenario where people live together in a relationship but are not actually married in the official city hall/Vegas/church/synagogue/officiated by someone type affair.  If you are not married, you do not have property rights in Ontario.

This means that even if you are filing income tax returns as ‘spouses’, if your partner dies without a will and you do not have title to the property, you have no claim to it.  The Supreme Court of Canada rendered a decision in 2002 that basically said marriage is a choice.  You have to actively choose to accept the benefits (and drawbacks) of marriage and that the courts or legislature should not be able to deem people married on the basis that they live together. 

There are two sides to this coin: on the one hand, you do not have to fear that your live-in paramour of the moment is going to inherit the property you worked so hard to acquire when you really think it should go to your struggling artist brother on the off-chance that you don’t make it home tonight.  On the other hand, if you are in a long-term relationship, thinking about kids but couldn’t be bothered with formalities, you may want to have a conversation with your partner.

Technically, a common-law spouse could apply to the courts to declare that an interest in the property was created by virtue of the fact that they contributed to its upkeep, maintenance, etc.  This is called a Trust Claim and basically means that the court could find that the owner of the property was holding the non-owner’s interest in the property ‘in trust’.  When I say technically, I mean that the landmark decision establishing that common-law spouses* can be entitled to an equitable interest in property took approximately ten years to go through the courts and resulted in the suicide of the woman, Rosa Becker, who ‘won’.  She killed herself because she would have had to go through yet another long legal battle just to collect on the judgment that she was ultimately entitled to.  Anyone who has been through litigation knows that it is very often a long, stressful, expensive process.  Sometimes litigation is necessary, however if you can establish your rights and responsibilities upfront, you should.

So, what’s a common-law person to do?  Depends on what you want/expect out of your arrangement. You can register the property as joint tenants or tenants in common or you can draft a will and bequeath your property to your beloved or you can sigh with relief.

Please bear in mind that this applies to property rights only.  If you have been supporting your common law spouse, you can still be responsible for support payments, and if you have kids you will definitely be responsible for child support payments.  I insert the caveat here that I do not practice in the area of family law and you would be wise to consult a lawyer in the area if you think you need to delve further into these issues.   

*The case law referenced deals with heterosexual couples.  If you are same-sex, same deal.  No property rights unless you are married.   

Rachel Loizos is an associate lawyer at Sotos LLP in Toronto. She practices in the area of real estate law. Email Rachel

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Related Posts:

Real Insight: How to Take Title - Sole Ownership, Joint Tenancy and Tenancy in Common

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