What is a “spouse”?

There are two types of spouses: (1) married and (2) common law.

What is a “common law” relationship?

There are two types of common-law relationships:

1. You and your spouse have lived together “in a marriage-like relationship” for at least two consecutive years, whether or not you have a child (or children) together, or

2. You and your spouse have lived together “in a marriage-like relationship” for any period of time that is less than two consecutive years, but you have a child together.
If your relationship falls into either of the above categories, you are in a common law relationship and your partner is considered your “spouse.”

The second type is confusing because a lot of people think that having a child with someone automatically makes the other person their common law spouse, but there is a requirement of at least a brief period of cohabitation in a marriage-like relationship.

Two people are not spouses, and they are not in a common law relationship if they are:

(1) not married, AND
(2) have never cohabited “in a marriage-like relationship” together,

Even if:

(1) they have a child together, and/or
(2) they lived together in a non-marriage-like relationship (for example, as platonic roommates)

If this is confusing, here are some hypothetical examples to help you understand:

Example 1: A child results from a one-night stand and the parents never live together.

They will both be parents, but not spouses. Whichever parent lives with the child will automatically be the child’s guardian, but the other parent may not be the child’s guardian unless he or she cares for the child regularly. It’s important to note that parents do not need to be spouses in order to seek orders regarding the children, such as orders regarding guardianship, child support, parenting time, or contact time.

Example 2: Two people live together in a “marriage-like relationship” for 1.5 years and do not have a child together:

The parties are not spouses. Neither party is entitled to spousal support or the division of the other’s property and debts. They should both try to divide their individual or jointly acquired assets and debts, but the family courts will generally not assist them in doing so. Either party can start civil proceedings, such as an action in Small Claims Court, if there is a dispute over property or debts.

Example 3: Two people live together in a “marriage-like relationship” for 6 months and have a child together:

The parties are spouses in a common law relationship. Either party can seek orders under Parts 2 – 4 or 7 – 10 of the Family Law Act (including but not limited to spousal support), but neither party can seek orders for the division of family property or family debts in family court.

Example 4: Two people live together in a “marriage-like relationship” for at least two years:

Whether or not they have a child together, the parties have the same rights as married couples, and either party can seek any order under the Family Law Act, such as orders for spousal support or the division of property and debts.

Example 5: Four students live together as roommates for three years. Two of those roommates have a little too much to drink on the one night and they conceive a child.

These people are not spouses, despite the fact that they will be parents and have lived in the same residence for more than two years. Unless they start to live together in a marriage-like relationship, neither party can seek orders under the Family Law Act, such as orders for spousal support or the division of property and debts. As mentioned above, either parent can seek orders from the court regarding the child (or children).

Example 6: Those two roommates in Example 5 decide to start a romantic relationship after finding out about the pregnancy. They get their own place and start living together in a “marriage-like relationship.”

The date they get start living together in a “marriage-like relationship” (most likely, the date they get their own place) is referred to as the “date of cohabitation.” The Date of Cohabitation is the date that two people start living together in a marriage-like relationship. Following the date of cohabitation, these two people will become spouses living in a common-law relationship.

The commencement of cohabitation and the existence of a child means that either of these parties can seek spousal support from the other if they separate, even if they separate before living together for two years.

If they live together for at least two years after the “date of cohabitation,” the parties will have the same rights as married spouses and can seek orders for spousal support and the division of property and debt, including the division of pensions, if applicable.