Yes, there is a big difference between common-law and married property division in Canada, and it all depends on which province you live in. In a traditional marriage, property is usually split 50/50 automatically by law when couples divorce. However, in a common-law relationship, you do not automatically get half of everything in many provinces. In places like Ontario, you have to prove in court that you contributed to your partner’s property—a concept known as “unjust enrichment.” In contrast, provinces like British Columbia treat common-law couples almost the same as married couples. Speaking with a property division lawyer at Pax Law Corporation can help you protect your rights during a separation.
Table of Contents
Summary Table: Rules Across Canadian Provinces
Here is a simple overview of how property division works for common-law couples depending on the province:
| Province | Is Property Split Automatically (50/50)? | How It Works |
|---|---|---|
| British Columbia (BC) | Yes (after 2 years) | Under the Family Law Act (BC), s. 3 & s. 81, property and debt are shared 50/50. |
| Saskatchewan (SK) | Yes (after 2 years) | Under The Family Property Act (SK), s. 2(1)(c) & s. 21(1), family property is divided equally. |
| Alberta (AB) | Yes (Only for separations on/after Jan 1, 2020) | Under the Family Property Act (AB), s. 39(5), modern separations get equal sharing. |
| Ontario (ON) | No | Under the Family Law Act (ON), s. 1, common-law couples must claim unjust enrichment in court. |
| New Brunswick (NB) | No | Under the Marital Property Act (NB), s. 1, marriage laws do not apply to common-law partners. |
The Core Rule: Kerr v. Baranow & Real Case Examples
In Canada, living together does not automatically give you a right to half of your partner’s wealth. The leading Supreme Court case on this issue is Kerr v. Baranow, 2011 SCC 10. In this case, the court ruled that cohabitation alone does not equal automatic entitlement to property:
“Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief.”
Simple Example: Imagine Partner A owns a house in their name. Partner B lives there for 10 years, helps pay the mortgage, cleans, and manages household renovations. If they break up in a province without equal division laws, Partner B does not automatically get 50% of the house. To get financial compensation, Partner B must prove “unjust enrichment” by showing three things:
- Partner A gained a financial benefit or wealth;
- Partner B suffered a financial loss or contributed effort without pay; and
- There was no legal reason (like a contract or gift) for this arrangement.
If proven, the court may order compensation based on Partner B’s actual contributions, rather than an automatic 50/50 split.
How Different Provinces Treat Common-Law Property
1. No Automatic 50/50 Split (Ontario & New Brunswick)
In these provinces, family laws only protect legally married spouses.
Ontario Case Example: In Martelly v Belgrave, 2024 ONSC 2746, the court confirmed that section 24 of Ontario’s Family Law Act (which protects the family home) does not apply to unmarried couples. Likewise, in Kamermans v Gabor, 2018 ONSC 5241, the court stated that an unmarried partner cannot use standard matrimonial rules and must prove unjust enrichment under the Kerr decision.
New Brunswick Case Example: In Maltais v. Frigault, 2026 NBKB 79, the court ruled that the Marital Property Act does not cover common-law couples, stating that marriage responsibilities and automatic equal splits are not duplicated for unmarried couples.
2. Equal 50/50 Split (British Columbia & Saskatchewan)
These provinces updated their laws so common-law partners are treated almost like married spouses.
British Columbia Case Example: Under Section 3 and Section 81 of the BC Family Law Act, living together in a marriage-like relationship for 2 years grants equal rights to family property and debt. In Parton v Riecker, 2023 BCSC 389, the court highlighted that BC laws were specifically created to stop common-law partners from being treated unfairly compared to married couples.
Saskatchewan Case Example: In Gareau v Blanchard, 2024 SKKB 64, the court applied Section 21(1) of The Family Property Act to split property equally between common-law partners who cohabited for over two years.
3. The Date Rule (Alberta)
In Alberta, the Family Property Act includes common-law partners (called “adult interdependent partners”), but only if the separation happened on or after January 1, 2020.
Alberta Case Example: In Postans v Davidson, 2021 ABQB 30, the couple separated before January 1, 2020. Because of the separation date, the court ruled that the new 50/50 law did not apply, and Ms. Postans had to prove unjust enrichment instead of expecting an automatic half share.
4. Quebec Rules
In Quebec, de facto spouses (conjoints de fait) are excluded from the statutory family patrimony rules. Unmarried partners must rely on equitable claims like unjust enrichment (enrichissement sans cause) if they split up.
Key Takeaways for Unmarried Couples
Property rights in a common-law relationship depend heavily on where you live and when you separated. If you are unsure about your legal entitlements or need support with property claims, contact the team at Pax Law Corporation today.
Frequently Asked Questions (FAQ)
Does common-law property divide 50/50 automatically in Canada?
No. Automatic 50/50 property division for common-law couples only applies in certain provinces like British Columbia and Saskatchewan. In provinces like Ontario and New Brunswick, common-law partners do not have statutory rights to automatic equal division.
What is the main court case governing common-law property claims in Canada?
The landmark Supreme Court of Canada decision is Kerr v. Baranow, 2011 SCC 10, which established the legal framework for unjust enrichment and the joint family venture doctrine.
How does Alberta handle common-law property division?
Alberta includes common-law partners (adult interdependent partners) under the Family Property Act only if they separated on or after January 1, 2020. Separations prior to this date must rely on equitable claims like unjust enrichment.
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