They can. A common-law partner whose name is not on title has no automatic share of the home, but where the couple built wealth together as a joint family venture, an Ontario court can order the titled partner to share the equity.
That is what happened in Galbraith v. Kinsley, 2023 ONSC 3332. After ten years and three children in a Dundalk home owned by one partner alone, the court awarded the other partner $191,000, an equal share of the home's equity.
Key takeaways
- Title is not the whole answer. A partner who is not a registered owner can still claim a share of the home through unjust enrichment.
- Domestic contributions count. Childcare, groceries, bills, and household work are recognized as contributions that free the titled partner to build equity.
- Ontario's Family Law Act property rules apply to married spouses. Common-law partners must build their claim on trust and unjust enrichment principles instead.
- The couple's pattern matters: pooled finances, shared responsibilities, children, and a life run as a team point to a joint family venture.
- A cohabitation agreement written before or during the relationship is the cheap way to decide this. Litigating it after separation is the expensive way.
This applies to common-law couples buying or living in a home in Ontario, the partner on title as much as the partner who is not, and the professionals who advise them.
What happened
Jeremy Kinsley bought a house at 150 Dundalk Street in Dundalk, Ontario for $172,000, closing on January 2, 2008. His partner, Tracie Galbraith, moved in right away. Over the next ten years they had three boys, born in 2009, 2010, and 2015, and ran the household as a family.
They kept separate bank accounts, but their economic lives, in the court's words, were inextricably intertwined. She generally paid for groceries, the phone plans, internet, cable, home heating, and the children's daycare, and took three maternity leaves. He paid the mortgage, property insurance, taxes, hydro, and water, did most of the home improvements, and worked long hours, out the door at 5:30 a.m. most days. Neither had much left at the end of a month. Mr. Kinsley was the sole owner on title.
When they separated in September 2018, Mr. Kinsley kept the home, and Ms. Galbraith left with none of the equity built over the decade. She claimed a trust interest in the house, arguing unjust enrichment and a joint family venture.
His answer: he was the owner, he paid the mortgage and did the major improvements, she benefited from the relationship too, and her pleading did not even ask for money.
What the court decided
Justice Chown found for Ms. Galbraith.
The legal framework comes from the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10. Unjust enrichment requires three things: a benefit to one party, a corresponding deprivation to the other, and no legal reason for the enrichment. Where the couple's relationship amounts to a joint family venture, courts look at mutual effort, economic integration, the parties' actual intentions, and the priority they gave the family, and the remedy is a share of the wealth the venture created rather than an hourly tally of services.
Applied here, the pieces lined up. The couple pooled money, time, and effort for a decade. Ms. Galbraith's financial and domestic contributions, including the childcare and household work that freed Mr. Kinsley to work long hours, helped build the equity that sat in his name alone. The court found the case easily met the test for unjust enrichment, and that the parties' relationship was, in substance, a partnership: both committed their full income and effort to the family, and the wealth it created had to be shared equally.
The math mattered. The court used a value-survived approach: half the increase in the home's equity, not a tally of services rendered. It valued the home at $577,500, deducted the $177,503 mortgage balance and the $18,000 Mr. Kinsley alone had put in as the down payment and purchase costs, and split the remaining $381,997 equally. Award: $191,000.
The delay point stings. The court measured the home's value at trial, not at the 2018 separation, precisely because Mr. Kinsley could have paid Ms. Galbraith her share at separation and did not. By waiting, he shared the appreciation that accrued through the pandemic market as well.
Why this matters for Ontario buyers and homeowners
Common-law couples are a large and growing share of Ontario households, and many assume the law treats them like married couples after a few years. On property, it does not.
Married spouses get a statutory regime. Common-law partners get litigation. The Family Law Act, R.S.O. 1990, c. F.3 gives married spouses equalization of property and special protections for the matrimonial home, protections strong enough that a missing spousal consent voided a $2.84 million sale. None of that applies to common-law couples. A common-law partner's route to the home's value runs through unjust enrichment, with the burden of proving it.
For the partner on title, the exposure is invisible until separation. Mr. Kinsley owned the house on paper for the entire relationship and still wrote a $191,000 cheque at the end. A cohabitation agreement addressing the home would have cost a small fraction of that, settled expectations early, and likely avoided the lawsuit entirely.
For the partner not on title, the protection is paper, not trust. Records of contributions, shared accounts, and a written agreement are what turn a moral claim into a provable one. Better still is going on title from the start. When a couple buys together, how they take title, as joint tenants or tenants in common, and in what shares, is a decision with consequences that surface years later. It is one of the first things we walk through when you buy a home in Ontario, and adding a partner to title later is a routine title transfer when done deliberately.
For agents and mortgage professionals, when one partner funds the purchase and the other stays off title "to keep it simple," this case is the counterexample worth mentioning. Simple at closing can mean expensive at separation.
Practical checklist
- Decide title together, on purpose. If both partners will contribute to the home, consider both names on title and record the intended shares.
- If one partner stays off title, put the reason and the expectations in writing. A cohabitation agreement can set out exactly what happens to the home on separation.
- Get independent legal advice on that agreement. Each partner needs their own lawyer for it to hold weight, which is what our independent legal advice service covers.
- Keep records of contributions: deposits, mortgage payments, renovations, and the running of the household. In a dispute, the paper trail is the case.
- Revisit the arrangement when life changes. Children, a refinance, or a major renovation all shift the fairness analysis.
Common questions
Do common-law partners automatically split property 50/50 in Ontario?
No. Ontario's equalization regime under the Family Law Act applies only to married spouses. A common-law partner has no automatic share of property held in the other partner's name and must prove a claim in unjust enrichment or trust to recover anything.
What is unjust enrichment?
A three-part test: one party received a benefit, the other suffered a corresponding deprivation, and there is no legal reason for the enrichment. In Galbraith v. Kinsley, a decade of financial and domestic contributions satisfied the test against the partner who held title alone.
What is a joint family venture?
A concept from Kerr v. Baranow, 2011 SCC 10. Courts look at mutual effort, economic integration, the parties' actual intentions, and the priority given to the family. Where a joint family venture exists, the remedy is a share of the wealth the relationship created, which in this case meant an equal share of the home's equity.
Do childcare and housework count as contributions to the home?
Yes. The court recognized that Ms. Galbraith's childcare and household work freed Mr. Kinsley to earn income and build equity. Domestic contributions are weighed alongside financial ones.
How can a common-law couple protect themselves when buying a home?
Decide title deliberately, document contributions, and put a cohabitation agreement in place with independent legal advice on both sides. In this case, a written agreement would have answered a $191,000 question before it was ever asked.
Does being on title still matter if courts can fix unfairness anyway?
Very much. Title determines the starting point, the burden of proof, and who must sue whom. An unjust enrichment claim takes years and legal fees, and the outcome is never certain. Going on title, or contracting around it, avoids the fight.
Sources and decision link
Galbraith v. Kinsley, 2023 ONSC 3332. Read the full decision on CanLII: 2023 ONSC 3332.
Also cited: Kerr v. Baranow, 2011 SCC 10, and Peter v. Beblow, [1993] 1 S.C.R. 980, which established that domestic services can support an unjust enrichment claim; Family Law Act, R.S.O. 1990, c. F.3.
Buying with a partner, or adding one to title? Get a free quote. Ten minutes on title now beats ten months in court later.
About the author: Christian Janisse is a licensed Ontario real estate lawyer and the founder of Simplyclose Law Professional Corporation. He acts for buyers, sellers, and lenders on purchases, sales, refinances, and title transfers across Ontario — in person in Windsor and remotely province-wide.