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If a common law wife in Ontario Canada moves out and leaves you paying the mortgage can she make a claim on the house two years later?

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February 28, 2013 9:14AM

The core of your question is whether matrimonial home provisions in family law apply to your situation.

The Family Law Act of Ontario says that a spouse is entitled to equal possession of a matrimonial home -- any ordinarily occupied family residence owned by the other spouse. The spouse then needs to consent for the house to be sold.

The act defines spouse as a person to which one is married.

That means that "common-law wife" is excluded from those provisions of the statute.

The supreme court decision Nova Scotia (Attorney General) vs. Walsh upholds the constitutionality of excluding unmarried spouses from matrimonial home provisions.

Here is part of the 8-1 decision:

Although the courts and legislatures have recognized the historical disadvantages suffered by unmarried cohabiting couples, where legislation has the effect of dramatically altering the legal obligations of partners, choice must be paramount. The decision to marry or not is intensely personal. Many opposite sex individuals in conjugal relationships of some permanence have chosen to avoid marriage and the legal consequences that flow from it. To ignore the differences among cohabiting couples presumes a commonality of intention and understanding that simply does not exist. This effectively nullifies the individual's freedom to choose alternative family forms and to have that choice respected by the state.

So, I would say she cannot make a claim on the house, but it may still depend on what argument she, or her lawyer, is trying to make.

Family Law Act R.S.O. 1990, CHAPTER F.3 PART II MATRIMONIAL HOME

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f03_e.htm#BK18

Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 (CanLII)

http://canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/2002/2002scc83/2002scc83.html