Published 10 September 2026 · By Jatin Dua, Broker of Record, RE/MAX Quantum Realty
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Ontario’s property regime does not apply to you. In Part I of the Family Law Act — the equalisation and matrimonial home provisions — “spouse” means two people who are married to each other. Common-law partners get no equalisation of net family property, no matrimonial home rights, and no automatic claim to a home in the other’s name. What protects you instead is how you take title, a written cohabitation or co-ownership agreement, and clear records of who contributed what. All three are cheap now and very expensive to reconstruct later.
The gap, stated plainly
Married spouses in Ontario have three things unmarried partners do not:
- Equalisation of net family property. On separation, the growth in each spouse’s net worth during the marriage is broadly shared. There is no equivalent for common-law partners.
- Matrimonial home protection. Section 19(1) of the Family Law Act gives married spouses an equal right to possession, and section 21(1) prevents one spouse disposing of or encumbering an interest in a matrimonial home without the other’s consent, a release, a court order or a registered designation. None of that applies to common-law partners.
- The date-of-marriage rule for the matrimonial home. Under section 4, property owned at the date of marriage is normally deducted from net family property — but not a matrimonial home. This provision has no unmarried analogue because the whole regime does not apply.
Spousal support is different: support obligations can arise between unmarried partners who meet the statutory definition in the support provisions. But support is not property, and it does not give you a share of a house.
What you have instead: title, agreement, and evidence
Title is the starting point
If only one of you is on title, that person owns the property. The other person’s route to a share is a trust claim — typically resulting trust or unjust enrichment — which must be argued, proved and paid for. Canadian courts have developed those doctrines to address exactly this unfairness, and they can succeed. They are also slow, expensive and uncertain, and no lawyer will tell you the outcome in advance.
The lesson is not that trust claims fail. It is that being on title is enormously better than having a claim.
Joint tenancy versus tenants in common
| Joint tenancy | Tenants in common | |
|---|---|---|
| Shares | Equal, by definition | Any proportions you choose — 70/30, 60/40, whatever reflects the contributions |
| On death | Right of survivorship: the survivor takes the whole, outside the estate | The share passes under the deceased’s will or intestacy |
| Suits | Partners who intend everything to be shared equally | Unequal down payments, children from a previous relationship, an inheritance used for the deposit |
| Watch out for | It defeats a will — survivorship happens regardless of what your will says | Without a will, your share goes by intestacy, which may not be to your partner |
This is the single most consequential decision you make at closing, it takes five minutes with your lawyer, and a great many couples make it by accident.
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Jatin Dua, Broker of Record — RE/MAX Quantum Realty Inc., Brokerage. Not intended to solicit buyers or sellers currently under contract with another brokerage.
The cohabitation or co-ownership agreement
A written agreement is what converts a set of intentions into something enforceable. It should be prepared with independent legal advice for each of you — the same lawyer cannot properly advise both — and it should deal with the following.
- The initial contributions. Who put in what for the down payment, land transfer tax, legal fees and furnishings, and whether any of it is a loan, a gift or an equity contribution.
- The ongoing contributions. Mortgage, property tax, insurance, utilities, condominium fees and maintenance — who pays what share, and whether unequal payment builds unequal equity.
- Renovations and improvements. Who funds them, and how they are credited on a sale.
- What happens on separation. Whether either can buy the other out, how the property is valued, how long the other has to arrange financing, and what happens if neither can.
- What happens on death. Aligned with how you took title and with your wills, which are not optional here.
- Family gifts and loans. If a parent contributed, is it a gift to one of you, a gift to both, or a loan? Put it in writing at the time, not afterwards.
- A dispute mechanism. Mediation before litigation, and a valuation method that does not require agreement.
If it goes wrong
If you are both on title and one of you will not sell, a co-owner can apply under the Partition Act for partition or sale. Courts have generally treated that as a strong right subject to limited defences. It works, and it is slower and more expensive than agreeing between yourselves — which is exactly why the agreement matters.
If only one of you is on title, the non-owner’s route is a trust claim, and it is uphill. Evidence of direct financial contribution to acquisition helps most; evidence of contribution to a joint family venture and enrichment of the owner also matters. Speak to a family lawyer early, because limitation periods apply.
If one partner dies, joint tenancy passes the whole to the survivor automatically. Tenancy in common does not: that share passes under the will, or under the Succession Law Reform Act if there is no will — and the intestacy rules do not treat a common-law partner as a married spouse. If you own as tenants in common and you have no will, your partner may end up co-owning the home with your family. Make wills.
The money, in Etobicoke terms
Etobicoke is inside the City of Toronto, so a purchase attracts both the provincial land transfer tax and the Toronto Municipal Land Transfer Tax, and neither can be added to your mortgage. On a $900,000 purchase that is $14,475 plus $14,475 — $28,950 in cash on closing day.
Two points specific to unmarried buyers:
- First-time buyer rebates are assessed individually. If one of you has owned a home before and the other has not, the eligibility and the amount claimable are affected. Confirm the current rules with your lawyer rather than assuming the full refund is available.
- Land transfer tax is a contribution too. If one of you pays the tax and the other pays the deposit, that is an unequal contribution to the acquisition. Record it, and decide in the agreement how it is treated.
The checklist before you close
- Decide joint tenancy or tenants in common, and if tenants in common, in what proportions. Instruct your lawyer in writing.
- Get a cohabitation or co-ownership agreement drafted, with independent legal advice for each of you.
- Make wills, and make them consistent with how you took title.
- Document every contribution — deposit, land transfer tax, legal fees — with bank records.
- Get any family gift or loan in writing at the time, stating whether it is a gift and to whom.
- Agree in writing how ongoing costs are split and whether unequal payment builds equity.
- Review life insurance and beneficiary designations, particularly if the mortgage depends on both incomes.
Frequently asked questions
Do common-law partners have property rights in Ontario?
Not under the property provisions of the Family Law Act. Part I defines “spouse” as two people who are married to each other, so common-law partners have no equalisation of net family property and no matrimonial home rights. Property questions are determined by title, by any written agreement, and by trust claims such as resulting trust and unjust enrichment, which must be argued rather than assumed.
What is the difference between joint tenancy and tenants in common?
Joint tenants hold equal shares with a right of survivorship: on death the survivor takes the whole, outside the estate and regardless of what a will says. Tenants in common hold shares in whatever proportions you choose, and each share passes under that owner’s will or, without a will, under the intestacy rules. For unequal contributions, tenancy in common with recorded proportions is usually the honest structure.
What should a cohabitation agreement cover for a home purchase?
Initial contributions and whether they are gifts, loans or equity; ongoing contributions to mortgage, taxes, insurance and maintenance and whether unequal payment builds equity; renovations and how they are credited; what happens on separation including buyout rights, valuation method and timelines; what happens on death; the treatment of family gifts or loans; and a dispute mechanism. Each of you needs independent legal advice.
What happens if only one of us is on title and we separate?
The person on title owns the property. The other’s route is a trust claim — resulting trust or unjust enrichment — which can succeed but must be argued, proved and paid for, and the outcome cannot be predicted in advance. Evidence of direct financial contribution to acquisition helps most. Speak to a family lawyer promptly, because limitation periods apply.
Can one of us force a sale if we are both on title?
Yes, generally. A co-owner can apply under the Partition Act for partition or sale, and courts have treated that as a strong right subject to limited defences. It is a real remedy and it is slower and costlier than reaching agreement, which is the practical argument for setting out buyout rights and a valuation method in a written agreement before you buy.
What happens if my partner dies and we are not married?
If you own as joint tenants, the right of survivorship passes the whole property to you automatically. If you own as tenants in common, your partner’s share passes under their will, or under the Succession Law Reform Act intestacy rules if there is no will — and those rules do not treat a common-law partner as a married spouse. Wills are not optional in this situation.
Do both of us get the first-time buyer land transfer tax refund?
Eligibility is assessed individually, so if one of you has previously owned a home the amount claimable is affected. Both the provincial refund of up to $4,000 and the Toronto rebate of up to $4,475 have their own conditions. Confirm your specific situation with your lawyer before budgeting on the full amount, and remember that neither tax can be added to your mortgage.
Does a parent’s contribution count as a gift or a loan?
Whatever the parties intended and documented at the time — which is why it must be written down when the money moves, not reconstructed later. State clearly whether it is a gift or a loan, and if a gift, whether it is to one of you or to both. Lenders will also ask for a signed gift letter confirming the funds are non-repayable, and that letter becomes part of the record.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 — s. 1 definition of “spouse”, s. 4 net family property, ss. 18–21 the matrimonial home provisions. Accessed 10 September 2026.
- Partition Act, R.S.O. 1990, c. P.4 — applications by co-owners for partition or sale. Accessed 10 September 2026.
- Succession Law Reform Act, R.S.O. 1990, c. S.26 — distribution on intestacy. Accessed 10 September 2026.
- Ontario Ministry of Finance — Land Transfer Tax — the provincial brackets and the first-time purchaser refund. Accessed 10 September 2026.
Related reading
- When a co-owner will not sell: the Partition Act
- Divorce and selling your Etobicoke home
- What a real estate lawyer actually does in Ontario
- Deposit vs down payment in Ontario: not the same thing
- Mortgage pre-approval in Ontario: what it actually guarantees
About the author — Jatin Dua, Etobicoke real estate agent
I am Jatin Dua, Broker of Record at RE/MAX Quantum Realty Inc., Brokerage, Unit 101, 799 The Queensway in Etobicoke, with more than four years of active GTA transactions and over $100M in sales volume. The five minutes you spend on title and the afternoon you spend on an agreement are the cheapest protection in the entire purchase.
Reach me at connect@jatindua.com or 833-330-1925.