Certified Specialist in Family Law and Toronto Area Family Mediator and Arbitrator John Schuman was recently asked the following question:
Hello. I am recently separated. I was on a common law relationship for about 7 years and we had 3 children together. My question is- Am I entitled to part of his Pension? I understand that I am entitled to part of his CPP pension but wondering if I am entitled to his work pension. Thank you
When married spouses separate, they are entitled to an equalization of their net family properties under Part I of the Family Law Act. This means that married spouses are entitled to divide the increase in their net worth that arose during the marriage. However common-law or cohabiting spouses do not have a right to an equalization or division of property on separation. For common law spouses to make a property claim against their spouse, they generally have to rely on equitable ‘trusts’ and must prove that they made a contribution to the property that they were not otherwise compensated for. You should listen to this podcast about the special characteristics of common law relationships and watch this video about common law separation and property division.
With regards to pension property, a common law spouse can apply for a division of Canada Pension Plan credits accumulated during the relationship, provided they have cohabited for at least one year. Generally, if both spouses have been paying into CPP, the entitlement of the lower earner will be increased and the future benefits of the higher earner are reduced accordingly. However, other pensions are considered property like anything else, and common-law spouses do not have an automatic right to share in them. If a person made significant contributions to their spouse’s career, such that they directly helped increase the value of the pension, they may have a trust claim. However, equitable claims are complicated and each case depends on its particular facts. If you believe you may have a claim in equity, you should always contact an experienced family law lawyer as these claims require significant skill to pursue.
If your partner is retired, you may be entitled to share in his pension as support. In fact, if you were economically disadvantaged by the relationship because you were in a common-law relationship and did have property division, you are more likely to be entitled to spousal support. So, you might get “part of the pension” as spousal support. In the event that child support is still payable by someone who is retired, pension income is income for child support.
Many pensions have survivor benefits for spouses who die after the pension members. Common law spouses may be entitled to those survivor benefits, but that would depend on the specific circumstances and the term of the pension. If you think you should be getting survivor benefits, then speak to a good lawyer.
To learn even more about the rights of cohabiting partners on separation, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 eBook for Kindle or Kobo or as an iBook for iPad, iPhone or Mac. You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.
If you have any questions regarding this or any other family law related issues, please contact our family law group at DSF.