What is Ontario’s Common Law?
What is common law in Ontario? This is a question that many newcomers to Ontario ask. Depending on the context, common law can have two meanings. Strictly speaking, common law refers to the laws that are based on court decisions (precedents), as opposed to statutes or regulations. Broadly speaking, common law can be used to refer to the total body of case law.
When it comes to sexual relationships, common law refers to a legal definition of spouses (or couples) that do not occupy a marriage relationship. Specifically, common law couples are couples that have lived together for three years or more, or less than three years if they have a child together. There is no common law partner under the Family Law Act , Ontario unless the parties are either wife and husband or former wife and former husband. Although the wording of the Act only speaks to spouses being either wife and husband, the Act applies to both married and unmarried spouses.
The Family Law Act does not use the term "common law" but instead uses the term "cohabitation". The laws giving rise to the rights of married spouses are not always the same as the laws applying to cohabiting spouses. As such, there may be some fairness in distinguishing between married and unmarried spouses.
"Under Ontario law a common law marital relationship just means two people are living together… unless the context shows otherwise. When talking about the same relationship in a Family Law context, context usually shows otherwise."
Principles of Common Law
Common Law in Ontario is built on a very fundamental set of principles. Understanding these will give you a glimpse of how our judicial system works. The fundamental principles behind common law are that of "precedent" and "stare decisis." In essence, under these principles, the decisions of higher courts must be followed by lower courts in subsequent cases with similar sets of facts.
Common law principles are not static. They evolve over time. New rulings from the Supreme Court of Canada give shape to what has come to be accepted as common law doctrine. These "precedents" vary from jurisdiction to jurisdiction, as they may have been reviewed and considered by courts of different levels in single provinces or territories, or by the appeal process from one province or territory to another. In general, common law is always evolving, and it is an important part of the Ontario judicial system. It explains how the law is fashioned into a complex system for Ontario citizens.
Common Law Rights in Marriage
Common law relationships in Ontario have distinct rights and obligations under family law. A common law spouse is one who has lived with their partner for at least 3 years or lived together for one year and had a child together. In other words, the relationship must be both long-term and have a familial element.
There are no automatic legal rights when living with a common law spouse in Ontario. The difference between common law and marriage in Ontario is that a legal marriage must include a both a marriage license and a ceremony. On marriage breakdown, the Family Law Act governs property division and the obligation to support children.
Familial Rights
A simple but essential point to understand is that common law family rights do not arise and are not enforced through the Family Law Act in Ontario. Spousal rights and obligations are governed by the common law and are vastly different from that of married spouses. That’s because spouses only have a matrimonial property regime if they are legally married in Ontario.
As a result, unless there is an agreement created between the parties or the courts specifically address them, common law spouses may not have rights to enforce support, travel with a child or make medical decisions for each other’s children. It’s important to remember that, with certain exceptions, the obligations to support, travel and decision making is reserved for biological or adoptive parents.
Property Division
The limitation on property claims is an important distinction between spouses and common law partners. The Family Law Act recognizes that property can be brought into a marriage, can increase or decrease, and that the increase may result in an imbalance of wealth on marital breakdown. The Property Rights reception in the Family Law Act recognizes that the family home is the most significant asset for the majority of families. As a result, each spouse is given equal rights to the home, regardless of whether the property was brought into the marriage, or which spouse may have contributed to the value of the home.
The Family Law Act governs the property rights of married spouses but does not apply to common law relationships. This does not mean that there are no rights. It means that spouses do not have a right to equalize the value of property upon separation, including the value of the family home.
While the family home is a significant family asset, there are many more. With the exception of family businesses and pension plans, the Family Law Act also governs the division of the increase in value of bank accounts, stocks, bonds and other investments.
If married spouses can also divide their debts equally, joint credit cards, lines of credit, mortgages and other liabilities are governed by the Family Law Act. Without the property equalization rules, common law spouses will not have the right to divide family debt. Instead, they will be solely responsible for their own debt even if the debt was used for the benefit of the common law relationship.
Support Rights
Generally, spouses are not required to compensate each other for the value of their household work or investment in the relationship in the same way spouses are under the Family Law Act. This means that a spouse who leaves the relationship with greater or lesser income than upon moving in with their partner does not have a legal claim for support.
A common law spouse has obligations to support of any statutory children and possibly an obligation to support a spouse if he or she cannot meet their own needs. Under Part III of the Family Law Act, each parent, whether or not he or she reside with the children, must support the children of the relationship. This means you may be ordered to pay child support even if you have no legal parent status under the Children’s Law Reform Act or if there is no child support agreement.
Common Law vs Statutory Law
Common law in Ontario refers to laws that are developed and established from court decisions, rather than from statutes, or civil laws. This type of law encompasses broad principles that are then applied to future cases. On the other hand, statutory law is legislation that has been enacted by a governing body like a parliament or state assembly. In Ontario, an example of statutory law would be the Family Law Act, which sets out rules and regulations governing matters such as marriage, divorce and property division.
The main difference between common law and statutory law in Ontario is how they are applied. Statutory law relies on the interpretation of the legislation itself, as well as any other relevant statutes, whereas common law looks at prior case law in order to determine how similar cases have been resolved in the past. For instance , courts might look at previous personal injury cases or specific rulings from the Court of Appeals or Supreme Court of Canada to determine how to settle a new case.
This does not mean that judges are bound by specific decisions, however. In some instances, Canadian law considers statue law definitive as it applies to a matter. An example of this would be marriage in Ontario. The statute would dictate what constitutes lawful marriage and those requirements must be met. In most situations, however, it is up to the judge to apply common law to the rules set out in the statute and make a decision based thereon.
Because Ontario does not have a system where judges rule on potential or drafted legislation, such as they do in some Civil Law jurisdictions, Ontario courts must go only by precedent-setting case law and, therefore, common law. This does not mean common law is less effective than statue law. Sometimes, common law can fill gaps that statue law does not cover.
Common Law Precedents in Court Cases
Throughout the years, various cases in Ontario have set important common law precedents. A few notable examples include:
Watson v. Ballantyne
This 1937 case involved a 35 year old man with a university degree who fell from a boat and drowned. The Court determined he had two years lost income due to his death based on the calculation of his expected income and life expectancy.
Kerr v. Baranow
In 2011, a man died in a car crash due to a hydroplaning tire. At the time, the man worked at a firm as a partner and maintained the lifestyle alone due to the fact that his wife was also a successful lawyer. The man’s income was reduced when his wife returned to a secondary role as a part-time consultant.
The court awarded $750,000 for loss of income and $1,002,238 for loss of services, deriving from household services.
Westman v. Vong
In this case, a male drunk driver crashed into the family of four’s car, killing the father and severely injuring the mother.
The court held the defendant liable for the following:
Carafaridis v. Lawrie
A cyclist was struck by a vehicle and severely injured in a town that had seen a growing number of cycling accidents. The case ended up resolving after the jury made a selection of $2.1 million in damages due to sex and alcohol.
Case Law and Common Law in Ontario
Modern Ontario legal practices are still heavily influenced by the principles that govern common law. While there has been a historic trend towards the use of statute law as a means to standardize and clarify legal processes, common law is still of significant importance in defining the action of the courts. Common law plays a particular role in Ontario family law.
A relatively recent trend that impacts the future of common law transfer practices in Ontario is the introduction of the Family Law Rules governing actions for support and custody in Ontario. In 2010, the Ontario Superior Court of Justice made a transition from the R. for Family Law Rules to the Family Law Rules – O.Reg. 114/99. In this transition, the rules and regulations from the prior version of Family Law Rules were largely retained and clarified into the current version of Family Law Rules. The updates to these rules have a direct impact on how actions between cohabitating couples are handled in the Ontario courts.
The application of statute law to common law actions in Ontario is an important consideration. Authority granted to the Ontario Attorney General is a result of common law principles as well as statutory law . Statutes governing the Ontario court system specifically grant the Attorney General the power to create by-laws and rules that modify the processes of the court system.
Statutes also govern the forms related to contract law and the requirements for contracts in the common law system. Statutes such as the Courts of Justice Act (CJA) are examples of common law principles that have been codified into specific rules and regulations.
Another recent trend with implications on common law practice is the creation of the Justice of the Peace Review. The Justice of the Peace Act now dictates the policies and procedures of Justices of the Peace in Ontario as well as the role of the Justice of the Peace Review (JPR) to hear appeals and distinguish the correct course of actions for specific cases. Changes to the Justice of the Peace Act will continue to influence common law practices in the foreseeable future. By establishing JPR with the ability to create resolutions to specific challenges within the common law system, these reviews will ultimately influence the roles and functions of common law in the province.