In Ontario, common-law partners do not automatically inherit property or get half the house when their partner dies. To secure housing or a share of the estate, they must apply to the Superior Court of Justice for dependant’s support or file an equitable claim, such as unjust enrichment.
Losing a life partner is a deeply emotional experience, but for common-law couples in Ontario, it can also become a financial nightmare. Unlike legally married couples, common-law spouses are not protected by the traditional equalization rules under the Family Law Act. Whether you live in Toronto, Ottawa, or Thunder Bay, if your partner passes away without a Will (intestate) or leaves you out of their Will, you have no automatic right to stay in a home that is solely in their name 📍.
However, the law does not leave you completely unprotected. Ontario’s legal system provides specific avenues for common-law partners to claim financial support and property rights after a death. This guide explains how you can fight for your fair share and secure your future .
Step-by-Step Process in Ontario
Filing a claim against an estate is complex, and time is heavily restricted. In Ontario, all estate disputes are handled through the Superior Court of Justice. If you are facing eviction from the family home by the Estate Trustee (executor) or your late partner’s children, you must act quickly by following these steps.
Step 1: Confirm Your Common-Law Status
Before you can sue the estate for support, you must prove you meet the legal definition of a “spouse” under the Succession Law Reform Act (SLRA). In Ontario, this means you and your deceased partner must have lived together continuously for at least three years. Alternatively, you qualify if you lived together in a relationship of some permanence and share a child together .
Step 2: Choose Your Legal Strategy
You generally have two legal paths to claim part of the estate or the house. The first is a Dependant’s Relief Claim under the SLRA. If you were financially dependent on your partner, you can petition the court to order the estate to provide you with adequate ongoing support. The second path is an Unjust Enrichment (Constructive Trust) claim. You must prove that you contributed to the home’s value (e.g., paying the mortgage, funding renovations, or providing unpaid domestic labour) and that it would be unfair for the estate to keep all the equity 💰.
Step 3: Register a Certificate of Pending Litigation (CPL)
If your late partner’s children or the Estate Trustee try to sell the house before your claim is resolved, you must stop them. Your lawyer can apply to the Superior Court of Justice for a Certificate of Pending Litigation (CPL). Once registered on the property’s title, a CPL prevents the house from being sold or mortgaged until your legal dispute is settled or ordered by a judge.
Step 4: File the Application and Negotiate
Your lawyer will draft a Notice of Application and an Affidavit detailing your relationship, financial contributions, and current needs. This is formally served to the Estate Trustee. Most estate disputes in Ontario are resolved through mandatory mediation. Reaching an out-of-court settlement is usually preferred, as it preserves estate funds and reduces emotional stress.
How Much Does it Cost in Ontario?
Estate litigation can be incredibly expensive. Unless you settle early, costs can escalate quickly. Here are the estimated fees in CAD for pursuing a common-law property claim in Ontario:
| Expense Type | Estimated Cost (CAD) |
|---|---|
| Court Filing Fee (Notice of Application) | $339 |
| Issuing a CPL | $181 |
| Estate Lawyer Fees (Hourly) | $350 – $750+ per hour |
| Private Mediation Fees | $3,000 – $6,000 (Usually split between parties) |
| Full Trial Costs | $30,000 – $100,000+ |
How Long Does the Process Take?
You face a very strict deadline. An SLRA dependant’s relief claim must be filed within 6 months from the date the court issues the Certificate of Appointment of Estate Trustee (probate). If you miss this window, the estate may be distributed, and you could lose your rights. Once a claim is filed, reaching a settlement through mediation usually takes 6 to 12 months. If your case proceeds to a full trial at the Superior Court of Justice, you can expect a wait time of 2 to 3 years.
Frequently Asked Questions (FAQ)
Does a common-law partner automatically get the house?
No. If your name is not on the deed (registered as a joint tenant), you do not automatically inherit the house in Ontario. You must actively file an equitable claim or a support claim against the estate to secure your interest in the property.
What if we signed a cohabitation agreement?
If you signed a valid domestic contract (cohabitation agreement) that waives your right to claim property or spousal support upon death, the court will generally uphold that agreement. However, if the agreement leaves you destitute, a judge may still intervene under the SLRA.
Can the Estate Trustee kick me out immediately?
No. The Estate Trustee cannot simply change the locks or throw you out onto the street. If you refuse to leave, they must go through a formal legal eviction process or seek a court order, which gives you time to file your own claim for interim support.
Can I claim an equalization payment?
No. Equalization of net family property is a right reserved exclusively for legally married couples under the Family Law Act. Common-law spouses must rely on unjust enrichment or joint family venture claims to get a property division.
Should I hire a lawyer from your directory?
Yes. Estate litigation involves complex overlapping laws like the SLRA and common-law trust principles. Attempting to sue an estate without an experienced Ontario estate litigation lawyer often results in missed deadlines and lost housing.
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