CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
remained fair and consistent with Saskatchewan’s Family Property Act. • In Hartshorne v Hartshorne , 2004 SCC 22, the Supreme Court confirmed that courts should respect private marriage agreements relating to property division, particularly when negotiated with independent legal advice. Fairness is assessed at the time of distribution and includes examining whether the outcomes were reasonably contem ‑ plated when the parties signed the agreement. 2.6 Cohabitation: Division of Assets Between Unmarried Couples Property Division on Relationship Breakdown Across Canada, the legal rights of unmarried partners regarding property division vary significantly by prov ‑ ince and territory. British Columbia, Alberta, Manitoba, and Saskatch ‑ ewan grant property‑division rights to unmarried part ‑ ners who meet specific criteria, such as a minimum period of cohabitation or factors that would result in the relationship being considered marriage-like. In these jurisdictions, qualifying unmarried partners may be entitled to an equal division of family property and debts upon separation, similar to the rights afforded to married spouses. In contrast, provinces such as Ontario, Quebec (until June 2025), New Brunswick, Nova Scotia, Newfound ‑ land and Labrador, and Prince Edward Island gener ‑ ally do not provide unmarried partners with statutory rights to property division. In these provinces, only married spouses receive an automatic or legislated division of family property upon separation. However, unmarried partners may still be eligible for spousal support if they meet certain criteria, such as cohabit ‑ ing for a specified duration or having a child together. Instead, claims relating to property in these provinces are typically determined by one or both of the follow ‑ ing. • provincial or territorial legislation providing limited property‑division rights for unmarried couples; and/ or • equitable claims, such as unjust enrichment, con ‑ structive trust, or resulting trust.
In most jurisdictions, an unmarried partner seeking a share in property titled in the other partner’s name must generally establish that: • the claimant contributed – directly or indirectly – to the acquisition, preservation, maintenance, or improvement of the asset; • the claimant suffered a corresponding deprivation; and • the other partner received a corresponding benefit without justification. Where these elements are met, courts may award monetary compensation or recognise a proprietary interest through a constructive trust. Some jurisdictions have enacted legislation extend ‑ ing property‑division rights to qualifying unmarried spouses after 2–3 years of being in a marriage-like relationship which considers various factors includ ‑ ing cohabitation, sometimes less if the couple shares a child. In other provinces – including Ontario, the Maritime provinces, and Quebec – unmarried partners typically must rely on equitable or common‑law claims rather than a comprehensive statutory family‑proper ‑ ty regime, except in limited areas such as the family home or vehicles. The legal rights of spouses in marriage-like relation ‑ ships vary based on jurisdiction and the specific cir ‑ cumstances of the relationship, including the follow ‑ ing. • Length of factors that are considered marriage-like including cohabitation – many provinces recognise unmarried partners after 2–3 years, although this recognition more often affects support entitlements than property division due to differing provincial property schemes. • Children of the relationship – having children may create entitlement to child support and may sup ‑ port a claim for spousal or partner support even where factors which would result in the relationship being considered marriage-like have existed for under 2–3 years, but it does not create automatic rights to property division. • Contributions to property or the relationship – regardless of length of the marriage-like rela ‑
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