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In Ontario, common law couples do not automatically have property rights in the way that married couples do. Rather, when you are common law, ownership is strictly by title. In simplest terms, this means that each party leaves the relationship with whatever is in his or her name, and assets are not subject to division or equalization.

However, the law does recognize that there are circumstances where parties in long term common law relationships may have a claim to an asset or assets that are only in the other party’s name, such as the house that was inhabited by the parties in the course of the relationship, or a business that is in one party’s name. In such cases, the onus is on the non-titled party to prove that he or she has a claim to the property in question by way of a constructive or resulting trust claim.

The existence of a constructive trust or joint family venture is a triable issue, meaning that it is a finding that will only be made after a trial on the issue.

To establish same, the party alleging such a claim must demonstrate that the parties were engaged in a joint family venture and that she or he has contributed towards the acquisition, maintenance, or increase in value of the property, either via direct monetary means (i.e. mortgage payments, payments towards property taxes, etc) or via labour towards the property or enterprise.   The party claiming the constructive trust must satisfy the court that there was a clear link between his or her contributions (monetary or otherwise) and the acquisition of the asset(s).

The Supreme Court of Canada has set out the following factors to be weighed and examined in the determination of the existence of a joint family venture:  mutual effort, economic integration (for example, joint accounts, joint contributions), actual intent of the parties vis a vis the acquisition of wealth (here, the length of cohabitation will be a factor), and priority to the family (characterized by the SCC as a party’s “detrimental reliance on the relationship…for the sake of the family, i.e. sacrificing one’s career in order to stay home and raise the parties’ child(ren)) .

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