If you’re separating from a common-law relationship in Ontario, the first thing to understand is the thing nobody tells you until it’s too late:

Almost none of the divorce rules you’ve heard about apply to you.

No matrimonial home. No equalization payment. No automatic right to stay in the house. Ontario’s Family Law Act gives married spouses an elaborate set of protections around the family home — and gives common-law partners essentially none of them, no matter whether you’ve lived together for two years or twenty-five.

That doesn’t mean you have no rights. It means your rights come from a completely different place: whose name is on title, what you contributed, and what you can prove.

I’m Ken Maynard, an Accredited Family Mediator and Certified Divorce Financial Analyst. Common-law house disputes are among the most emotionally loaded files I see — precisely because one partner usually believed the law protected them, and it doesn’t. Here’s how it actually works, and how to resolve it without three years in court.

First, what married couples get that you don’t

For married spouses, the family home is a “matrimonial home” under the Family Law Act: both spouses have an equal right to live in it regardless of title, neither can sell or mortgage it without the other’s consent, and its full value is shared through equalization.

None of that applies to common-law partners. There is no such thing as a common-law matrimonial home in Ontario. When you separate, the starting point is ordinary property law: the house belongs to whoever owns it.

(One important carve-out: spousal support is different. Common-law partners can qualify for spousal support after three years of cohabitation, or sooner if you have a child together in a relationship of some permanence. People constantly conflate property rights and support rights — you may have no claim to the house and a strong claim to support, or vice versa.)

So the analysis starts with one question.

Whose name is on the title?

If the house is jointly owned

You’re in the strongest — and simplest — position. Each of you has an ownership interest, each has the right to live in the home, and neither can sell or mortgage it unilaterally.

Two details matter:

• • Joint tenancy vs. tenancy in common. Joint tenants own the whole together with a right of survivorship; tenants in common own defined shares (which need not be 50/50). Check your deed — and note that after separation, many people sever the joint tenancy so their share passes to their estate, not their ex.

  • Neither of you can be forced out — but either of you can force a sale. A co-owner can apply under the Partition Act for an order that the property be sold and the proceeds divided. Courts grant these routinely. Practically, this means a jointly-owned home gets resolved one of three ways: one partner buys the other out, you sell and split, or you agree on something more creative.

If the house is in your partner’s name only

This is the hard scenario, and honesty matters more than comfort here: as the non-owner, you have no automatic right to possession. Your partner can ask you to leave, change the locks, sell, or mortgage the property without your consent. There’s no consent requirement and no statutory veto — protections that would exist automatically if you were married.

Your potential claims are equitable, not automatic:

• • Resulting trust: You contributed directly to the purchase (down payment, mortgage payments) with the understanding you’d have an ownership share.

  • Unjust enrichment / constructive trust: Your contributions — money, renovations, years of unpaid work in a shared enterprise, running the household so your partner could build equity — enriched your partner, deprived you, and there’s no legal reason (like a gift) for them to keep the benefit.

    The Supreme Court’s Kerr v. Baranow framework asks whether the relationship was a “joint family venture” — pooled resources, shared decisions, mutual effort toward common goals — and whether the enrichment is linked to it.

    If so, you may be entitled to a share of the wealth the venture created, sometimes as an ownership interest in the home itself.

     

These claims are real — people win them. But understand what they involve: reconstructing years of contributions, bank records, and intentions, in litigation that can cost more than the claim is worth and take years to resolve. A trust claim is leverage for a negotiated settlement far more often than it is a courtroom victory.

If the house is in your name only

Read the section above from the other side. You hold the legal cards — possession, sale, mortgage — but you may face a trust claim, and “I was the only one on title” is not a complete answer if your partner paid the renovations or carried the household for a decade. Getting an early, realistic assessment of that exposure is worth far more than discovering it in a statement of claim.

Where there’s a house to divide — by title or by settlement — a buyout is usually how one partner keeps it. The mechanics resemble a married buyout, with one key difference at the start.

Step 1: Establish the share. For married couples, the starting point is half the equity. For common-law couples, the share is whatever ownership and contributions establish — half for equal joint owners, a defined share for tenants in common, or a negotiated figure reflecting contributions where title and reality don’t match.

Step 2: Value the home properly. A jointly-retained appraiser from the Appraisal Institute of Canada ($500–$800) gives you one defensible number instead of two arguments.

Step 3: Do the math on equity, not price. If the home is worth $1,000,000 with a $400,000 mortgage, the net equity is $600,000. A partner with a half interest is owed $300,000 — before adjusting for disposition costs and anything else on the table.

Step 4: Check affordability before committing. The buying partner must qualify for the mortgage alone and carry the house alone. The financing options are largely the same as for married couples — refinancing, and note that the CMHC spousal buyout program extends to separating common-law partners with a signed separation agreement. Our Matrimonial Home Buyout Calculator runs these numbers. (See Below)

Step 5: Paper it. A common-law separation agreement dealing with the home, the payment, the mortgage, and mutual releases. Without the statutory framework married couples get, your agreement is the framework — it’s the only thing standing between you and open-ended future claims.

What if you can’t agree?

Options, in rising order of cost and conflict:

• Mediation. You negotiate the outcome — buyout, sale, deferred sale, one partner renting from the other — with a neutral guiding the process. This is where creative resolutions live, especially where children need housing stability that neither the Partition Act nor a trust judgment will provide.
• A partition application (joint owners): the court orders the home sold. Effective, blunt, and it answers only one question — nobody “gets” the house; the market does.
• A trust claim (non-owners): powerful in the right facts, but slow, expensive, and uncertain. Best used as negotiating reality, not Plan A.

The court’s toolbox for common-law house disputes is even blunter than for married couples. If you want an outcome more tailored than “sell it,” you have to build it at the table.

Protecting yourself — before or during the relationship

If you’re reading this before a crisis, three tools do most of the work:

• A cohabitation agreement stating who owns what, what happens to the home on separation, and how contributions are treated. It converts every ambiguity above into a written answer.
• Title that matches intentions. If you both consider it “our house,” put both names on it. If it’s meant to stay separate, keep contributions clean and documented.
• Records. Down payments, mortgage contributions, renovation costs. Trust claims are won and lost on paper trails.

For married couples, the family home comes with a rulebook. For common-law couples, there’s a title document, a mortgage, and whatever the two of you can prove or agree. That’s frightening if you leave it to a courtroom — and an opportunity if you don’t.

In mediation, I help common-law couples establish a fair share, run the buyout math with CDFA rigour, and turn the result into a binding separation agreement — typically in about four meetings, at a fraction of what a trust claim costs to litigate.

Whether you’re the one on title or the one who isn’t, know where you stand before you negotiate.

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