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Common Law

What is Common Law?

Common law is an old form of legal system that functions on precedent, or case law. This means that the legal system takes the past decisions and uses them to guide ruling going forward. Common law systems are based on the principle that rulings should be consistent with previous rulings. This helps create consistency and stability within the legal system.

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Benefits of Common Law Systems

The common law courts provides numerous advantages, including:

Flexibility and adaptability to changing social conditions

The Legislature are restricted to creating a statute and regulations that may not be suitable for all cases. It is simply impossible for them to plan out each possible problem or situation the courts could face in advance, no matter how hard they try.

In contrast to civil law systems, common law doesn’t necessitate legislators to pass amendments in statutes and codes, which can be a time-consuming process or might never occur. Pertaining to common law, superior courts are able to overturn past decisions labelled as “bad laws” without the requirement for legislature intervention.

Stability in providing a predictable outcome for similar cases

Common law helps to ensure predictability and reliability since all involved parties understand that the final ruling is based on precedent rather than personal opinions.

Cost efficiency by allowing lawyers to use existing precedents when researching legal issues

By simply adhering to already established precedents, judges in common law systems can expedite court proceedings and save everyone valuable time and money.

Accessibility to common law decisions

Common law decisions are publicly available records that can be consulted anytime, which makes them accessible.

Factors to Consider When Utilizing Common Law

Since common law is based on precedent, it is important to consider the following factors before making a decision:

  • The common law of which jurisdiction or state applies.

  • Has the common law been modified or amended in any way?

  • What type of common law precedents exist that are applicable to the current case?

  • Are common law decisions from other jurisdictions or states applicable to the current case?

But Canada is a bijural country which means it has two legal traditions — one is the common law system, and the other one is the civil law system.

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What is Civil Law?

Civil law is a type of legal system that relies heavily on a set of written laws, or statutes. This contrasts common law in that it doesn’t use precedent as its primary source for rulings. Instead, civil law looks to the statutes to determine what the ruling should be. This can lead to greater consistency between cases since all rulings are based off of the statute, but it can also limit judges’ discretion in certain situations.

One common example of a civil law system is the Quebec Civil Code. This set of laws governs all aspects of life in Quebec and has been used for over two centuries. It’s a set of rules that must be followed by everyone living in Quebec and helps ensure that all citizens are treated fairly and equitably. In its other sense, civil law refers to matters of private law as opposed to public law, and particularly criminal law, which is concerned with harm to society at large.

While common law and civil law have similarities in many ways, there are some distinct differences between them.

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Benefits of Civil Law System

One of the primary benefits civil law systems offer is predictability. Since all rulings are based off of statutes, judges have less discretion and must stick to what’s written in the laws. This can provide more consistency between cases and make it easier for people to understand how the legal system works.

Civil law systems also tend to provide more clarity when it comes to legal rights and obligations. Since the laws are written down, it’s much easier for citizens to understand their rights and responsibilities within society. This can help people feel more secure in knowing what is expected of them.

What is the Difference Between Common Law and Civil Law?

The primary difference between common law and civil law is in the sources of their respective legal systems. Common law is based on precedent, or case law, while civil law relies heavily on written laws, or statutes. This means that common law gives judges more discretion when making rulings whereas civil court has to follow what’s written in the statute books.

Common law is also more flexible than civil law as common law rulings are based on the circumstances of individual cases. This means that common law can be tailored to each situation in order to ensure justice is done, whereas civil court rulings must be consistent with the statutes.

These differences between common and civil law systems can often lead to different outcomes in similar cases. This is why common law systems are known for their flexibility and can lead to more equitable outcomes than civil court proceedings.

Roles of Judges and Lawyers in Each System

Judges in civil law countries are often referred to as “investigators,” as they take authority and the lead role in proceedings by bringing accusations, examining witnesses, and implementing remedies that can be found within legal codes.

This allows the authority of judges to build a more informed understanding of the facts, ensuring justice is served accordingly. Attorneys remain committed to advocating for their clients in civil matters, though the role is less prominent than before.

Similarly to common law systems, lawyers’ responsibilities include providing legal advice and creating documents that need to be presented in court proceedings. The work of counsel continues to ensure fair outcomes for all parties involved.

On the other hand, in a national legal system that follows common law principles, lawyers’ many responsibilities are making arguments to judges (and occasionally juries) and questioning witnesses.

The proceedings then move forward under the guidance of the judge, who has more flexibility than civil laws permit when it comes to deciding on an appropriate remedy at the end of a case.

When representing a client, attorneys strive to convince the court on legal and factual matters while playing an active role in the proceedings.

Irrefutably, attorneys are integral to resolving disputes formally in any country they practice. This is evidenced by the descriptions mentioned above.

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Common Law Marriage

A common law marriage, also known as a non-ceremonial marriage, is a legal framework that may allow couples to be considered married without having formally registered their union as either a civil or religious marriage.

The term “common law marriage” is used to define a connection where two people live together, acting as if they are married by representing themselves in front of family and friends as such, without ever participating in an official wedding ceremony or obtaining a legal marriage license.

Below are three of the common requirements to be considered:

  1. Cohabitation

  2. An intent to be married must exist between both parties

  3. – Must hold themselves out as married couples

Other things to Consider in Common Law Marriage


Of course, your age is also considered in whether a couple can be considered spouses. The age of both parties should be of legal age.

Note that it depends on the state or nation on how long the married couples has lived together for them to be considered married through common law marriage. Also, the time both persons have lived together is not enough for them to be part of the law.

Much like a formalized marriage, an established common law union is legally just as authoritative and binding unless a divorce is granted or one spouse dies. That means both couples in a common law married are legally married just as two people in a common law relationship that had undergone formalized marriage.

Although you may not have the ability to marry someone when you first move in with them, it is still possible for a common law marriage to develop. This can take place if either one of your partners is divorced while living together in a state where common law marriages are recognized; on the other hand, if one partner moves into another household that has an already married person and they pass away while living there – this would create capacity within said couple. In both cases, despite lacking the capability to wed before moving in together – through divorce or death-capacity has been regained, which could lead to eventual matrimony.

Common Law Relationships Under the Family Law Act

The Family Law Act of 1990, enacted by the Ontario Legislature, outlines and defends the rights of spouses and dependants related to inheritance, prenuptial agreements, property disputes, support claims during separation or divorce proceedings. It is designed to protect family relationships while providing a secure legal framework for resolution when necessary.

The law covers the following subjects relating to marriage and common-law marriage in the province of Ontario:

  • Part I—Family Property (sections 4–16)

  • Part II—Matrimonial Home (sections 17–28)

  • Part III—Support Obligations (sections 29–49)

  • Part IV—Domestic Contracts (sections 51–60)

  • Part V—Dependants’ Claim for Damages (sections 61–63)

  • Part VI—Amendments to the Common Law (sections 64–67)

Common Law FAQ

Yes, common law partners are considered spouses in Canada. This means common law marriage has the same rights and responsibilities as a married couple.


Common-law spouses are not provided with the same legal advantages as married couples, and do not have equivalent property rights. In Ontario, if a common-law spouse passes away without drafting a Will (intestate), their survivor will be excluded from all inheritance proceedings since they are omitted out of default. Despite this fact, depending on circumstances in play, there exists two avenues to file claims against the deceased’s estate: filing for dependency or submitting an application for unjust enrichment.


Unlike in other countries such as the United States, Canadian tax rules do not allow spouses or common-laws to file joint income tax returns. All Canadian citizens must file their own personal tax return every year and make sure to include information regarding their marital status as well as whom they are married or living with.

Typically in Canada, a common law partner is only entitled to everything they personally own. In certain cases, if you’ve been contributing to a property for some time, you may be able to make a claim of ownership. Every couple’s situation is unique and the details regarding claims can vary greatly due to individual circumstances.

Also, it’s important to note that common-law couples in Canada do not have the same rights as married couples when it comes to family law matters, such as custody of children and support payments.

Common-law couples who decide to separate must seek legal advice in order to ensure that their rights are protected. A common-law lawyer, such as TCZ Law, can help common-law couples understand their rights and determine what steps need to be taken in order to ensure that they are appropriately compensated.

Common law relationships in Canada generally require that two people have been living together continuously in a marriage-like relationship for a period of at least one year. It is important to note, however, that common law marriages do not exist in the eyes of Canadian law and those who meet this requirement are instead considered common-law partners.

Items that can be used as proof of a common-law relationship include:

  • Evidence of joint commitments, such as a mortgage or common bills

  • Evidence of shared living arrangements, such as a lease agreement for rental property

  • Joint bank accounts and/or credit cards establishing common financial activities

  • Photographic evidence of common social activities

  • Other documents detailing common activities (e.g. travel itineraries, common memberships, etc.)


Common law couples may apply for permanent residence in Canada as common-law partners, but they must demonstrate that their relationship is long-term and ongoing. This means that common law couples must show evidence to prove their relationship has been continuous and lasting for at least one year before applying.

When you register as Common-law, your Marital status can only be revised to Married, Separated or Widowed. On the other hand, if you originally reported that you were Married, your options for alteration are either Separated, Divorced or Widowed.


If you are in a common-law relationship and do not file as such on your tax return, you may be liable for filing a fraudulent document – an offense that carries with it serious consequences. You can expect to be reassessed for unpaid taxes plus any accrued interest or penalties.


Common law couples are not legally required to split property acquired when they lived together. Under the common law, any possessions that an individual brings into a relationship remain solely under their ownership—including furniture and other household items. Furthermore, this person is not legally obliged to share any increase in value of the property they owned prior to joining the relationship.

A common-law spouse is entitled to claim a division of CPP pension credits that accumulated during the relationship, provided that they have conjugal relationship for at least a year. As for all other pensions, the laws of family property take precedence, so common-law spouses don’t possess a default right to them.

Alimony is not common in common law relationships as there are no legal obligations for common law spouses to support one another financially. However, a common law relationship partner may still be able to claim alimony if they can demonstrate that their former partner has the means and ability to pay spousal support.


Yes, a common law partner is considered a family member and may be eligible to receive Canadian permanent residence either through the Family Class sponsorship or as a dependent of their common-law partner who is a Canadian citizen or permanent resident. If you wish to bring your spouse and/or dependent children with you to Canada, they need to meet the following requirements:

  • you and your family members meet the eligibility requirements of your program (for example, you meet the income requirement to sponsor your family members),

  • your children qualify as dependants, and

  • your family members are not inadmissible to Canada.

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Why Choose Us

TCZ Lawyers is one of the most respected Family Law Attorneys in Toronto. We offer a comprehensive range of family law services to help resolve conflicts and protect the rights of individuals and their families.

Our Family Law Attorneys are highly knowledgeable about Family Law Act, Family Responsibility Office (FRO), Children’s Aid Societies (CAS), and other relevant laws. We are committed to providing personal attention, cost-effective solutions, and the highest legal representation for our clients.

If you are going through a Family Law dispute, Toronto Family Lawyers can lead professional help – TCZ Lawyers can help.