Many laws in Ontario about families and money are different for people who are married and for people who are not married. To know your rights you need to know what it means to be legally married, and how different laws define what spouses are.
Know how the law defines marriage and unmarried spouse
Here is what being married means in Ontario:
- Two people of the same or opposite sex have had a legal marriage ceremony performed by a judge, a justice of the peace or a licensed member of the clergy.
- For a marriage to be legal, both people must be at least 18 years old. However, people can get married when they are 16 if they have written permission from their parents or legal guardians.
- More than two people can be married, but only if the marriage took place in a country where polygamy is legal.
- To end a marriage, spouses must get a legal divorce or annulment.
- Certain classes of people who are related through blood or adoption cannot marry each other. For example, you can't marry your sibling or half-sibling.
- People can't be forced to get married. Marriage must be voluntary.
Unmarried couples of the same or opposite sex are called spouses, common law partners or conjugal partners. Here is how to tell if people who live together are considered legal spouses:
- Two people who live together as a couple can be spouses if they depend on each other financially and emotionally.
- People must live together for some time before they become legal spouses. Some laws say people become legal spouses after only 3 months. Other laws say they are not spouses until they have lived together for 3 years.
- The law says that two people who are in a steady relationship and have a child together are legal spouses.
- A relationship with a spouse ends when the couple separates and will not be getting back together.
- Two people can be spouses even if one or both of them are still legally married to someone else.
When does the law consider someone your legal spouse?
Different kinds of laws in Ontario recognize common-law relationships in different ways. Most laws define couples according to how long people have lived together. Some laws consider people spouses after only 3 months, and other laws require people to live together as a couple for at least 3 years before they are considered spouses. Some laws even say that people who have never lived together have spousal responsibilities.
You need to know what the different laws say about your relationship so that you can protect your own interests. This chart shows basic information about how different kinds of laws define a spouse.
|What Law||How long do you have to live together to be spouses?||When can someone be your spouse even if you don't live together?||Other things about your relationship that the law considers|
|Social Assistance||3 months||
|Spousal Support||3 years||If you share custody of a child and live together with "some permanence"||
|Property Division||3 years||If you share a child and live together with "some permanence"||Property division between spouses that aren't married is not automatic|
|Child Support||You don't have to live together for child support||N/A||You don't have to have a spousal relationship to have rights or responsibilities to child support|
|Immigration Sponsorship||One year||
If you can't live together in another country for fear of persecution or punishment
|Canada Pension Plan||One year||N/A||Relationship must be conjugal|
Be aware of how OW and ODSP define a spouse
Rules for both Ontario Works (OW) and the Ontario Disability Support Program (ODSP) say that the assistance amounts are different for single people and for people who live with a spouse. Couples receive less assistance together than the total amount you would get as two single people. The rules for OW and ODSP are the same for married couples as for couples that aren't married.
If you receive benefits as a single person and OW or ODSP think that you're living with someone as your spouse, your benefits could be cut off. If OW or ODSP says you are living with your spouse you can then apply as a couple.
If you're receiving benefits as a single person, you must tell OW or ODSP if someone moves in with you. If you're living with someone and that person leaves, tell OW or ODSP because you may be eligible for different benefits.
OW and ODSP use a very broad definition of spouse. Their rules say that after you live with another person for 3 months, that person is your spouse if you rely on each other financially or if you share responsibility for supporting a child. Even if you are not in a sexual or romantic relationship, OW and ODSP can say that you are spouses.
What questions can OW and ODSP ask to decide if someone is a spouse?
OW and ODSP can ask you for information about someone or about your relationship with that person in order to decide if that person is your spouse. They can ask you for information to decide whether you are financially dependant and living as a couple. OW and ODSP can ask you questions such as:
- What is the social insurance number of the person you live with?
- Where does the person you live with work, and who is their boss?
- Do you own things together?
- Do you pay bills together?
- Are both of your names on leases or bills?
- Do friends and family think you're a couple?
- Do your children think you're a couple?
- Does the person you're living with act as a parent to your children?
OW and ODSP are not allowed to ask you about whether you are in a sexual relationship.
If you don't answer OW or ODSP's questions or you don't provide them with the information they ask for, your benefits can be cut off. If OW or ODSP decides that someone is not your spouse, they can ask you about your relationship every few months to see if it has changed.
Even if you do not live with a person, OW or ODSP may consider them to be your spouse if you are apart because one of you is away at school, is working, or is waiting to immigrate to Canada. OW and ODSP can also decide you are still spouses if you are living apart and they believe there is a chance you will get back together. OW and ODSP rules say that two people are no longer spouses if they stop living together and there is no reasonable chance that they will get back together. Tell OW or ODSP as soon as your relationship changes.
Does the law require you to get child or spousal support before OW or ODSP?
Before you can get assistance from either OW or ODSP, you must first try to get financial support from a spouse, former spouse, or another parent of your children. If OW or ODSP does not believe that you are trying hard enough to get financial support from these people, they may reduce your benefits or decide that you do not qualify.
You may not have to ask for support from a spouse or parent of your child if:
- Your spouse has abused you or your children
- You can't find your spouse
- Your spouse can't pay any support
- Your spouse lives in a country where a support order can't legally be enforced
If OW or ODSP decides that you don't need to ask for support, they can ask you again after three months. They can make you prove that there are reasons you can't ask for support from a spouse or other parent every few months.
If you receive child support or support from a former spouse, it is likely that OW or ODSP will cut the amount of your monthly benefits. Even if the payor doesn't pay, your benefit will be reduced by the amount of support you should be getting. If your former spouse regularly misses support payments, ask to have the child support paid to OW or ODSP. That way OW and ODSP will know when your former spouse doesn't pay and they can give you the full benefit if child support or spousal support is not paid.
How to challenge decisions from OW or ODSP
If OW or ODSP refuses your application, reduces your benefits or cuts you off because they consider you to be living with a spouse, you have 40 days to write to the office that made the decision and request an internal review. If you don't agree with the decision of the internal review you can appeal to the Social Benefits Tribunal. For more information visit their website at www.sbt.gov.on.ca or call toll free at 1-800-753-3895 or TTY: 1-800-268-709.
Rights and responsibilities for income tax
Many calculations and tax credits are based on combining a couple's income. This can be an advantage or a disadvantage, depending on your income and your spouse's income
Two people who both have low incomes usually pay more tax as a couple than if they were two single people. Couples where one person earns a lot more than the other person often pay less tax than couples that both earn a low income.
How does Canadian tax law define a couple?
You can file your taxes as a couple if you're legally married or if you live in a common-law relationship. For tax purposes someone is your common-law partner if:
- You lived with them in a relationship for 12 months in a row, even if you were apart for up to 90 days
- They are a parent of your child, either by birth or adoption
- They have custody of your child and your child depends on them for support
When does it help to be married or living common-law?
If one spouse has a higher income they can use the tax credits that the other spouse with a lower income does not need. Here is a list of tax credits that can be transferred from one spouse to another:
- An Age Credit for people older than 65
- A Child Tax Credit for children under the age of 18
- Pension income payments
- A Disability Tax Credit
- Credits for the cost of post-secondary education
When is it a disadvantage to be married or living common-law?
Being part of a couple can be a disadvantage if both spouses have low incomes. Low-income couples qualify for fewer tax credits than they each would get if they were single.
The Government of Canada can help you estimate what your Child Tax Credit or your HST/GST benefit will be.
How to estimate your Child Tax Credit or your HST/GST benefit
To estimate your Child Tax Credit call 1-800-387-1193, or visit the government site.
To estimate your HST/ GST benefit call 1-800-959-1953 or visit the government site.
Rights and responsibilities when sponsoring family members to immigrate to Canada
Canadian citizens or permanent residents who are 18 years of age or older can sponsor some family members to immigrate to Canada. To sponsor family members, you must live in Canada or plan to live in Canada. Here is a list of the family members you can sponsor:
- Married spouses
- Common-law partners living together for at least 1 year
- Partners of at least 1 year who can't live together because of the law of the country they are coming from
- Parents and grandparents
- Dependant children (single and under the age of 22, over the age of 22 and enrolled as a full-time student, or dependant on a parent because of a physical or mental condition)
- The dependant children of your spouse or parent
- Children you plan to adopt
- Orphaned relatives who are unmarried and under the age of 18
*Note that in November 2011 the Government of Canada said it will not accept any new applications to sponsor parents and grandparents for two years.
Sponsors are financially responsible for their family members
To sponsor family members, you must promise the Government of Canada that you will support your family financially. You must sign a paper saying that you will pay for everything that your family member needs. This means you must promise to pay for their food, clothes and a place to live, and also for any medical costs not covered by OHIP.
If you are on ODSP you can sponsor family members, but if you're on any other social assistance you can't be a sponsor. You must show that you have enough money to support the family members you want to sponsor, such as parents or grandparents, the dependant children of your spouse or parent, or any orphaned relatives.
When you sponsor a family member, you're responsible for them for a set amount of time after they arrive in Canada. The chart below shows how long you must support your relatives after they become permanent residents:
How long sponsors are financially responsible for family members
|Family member||How long sponsor is responsible|
|Spouse||At least 3 years|
|Children over the age of 22||At least 3 years|
|Other family members||10 years|
If a family member that you have sponsored receives social assistance within the time period indicated above, you may be asked to pay that money back to the government. Until you pay back the amount of social assistance owed, the government may not let you sponsor any other family members.
For more information about your rights and responsibilities, see Where to get help when you need it.
If your relationship with your sponsor spouse ends
If your spouse sponsors you to come to Canada they must support you for at least 3 years, even if the relationship ends. If your marriage ends before your application for permanent residency is accepted, you can apply to stay in Canada by making an application for reasons known as Humanitarian and Compassionate Grounds. However, it can be quite difficult to successfully immigrate to Canada when you apply on Humanitarian and Compassionate Grounds.
If your marriage ends and your spouse refuses to support you, you can apply for social assistance. You can't lose your permanent resident or landed immigrant status because your marriage ends, and you can't lose your permanent residence or landed immigrant status because you apply for Ontario Works (OW).
If you leave your spouse because your spouse is abusive to you, talk to a lawyer. You may be able to apply to stay in Canada.
Like Canadian citizens, sponsored spouses, immigrants, refugees, and people without immigration status have financial rights when they are separating from a spouse. They have the same rights to dividing property, to the matrimonial home, and to spousal support and child support.