3 Years Living Together

[ATM Machine]

I have a question regarding living together unmarried for 3 years. Some background info:

Separated from ex in August 2004
Moved out in December 2004
Moved in with fiancee in April 2005
Divorced in December 2005

I pay both spousal and child support.

Do I or my fiancee need to be concerned about anything with us approaching living together for 3 years? Does this affect my income (is it now considered combined or is it still just my own income) and whether any changes to spousal/child support may vary?

Thank-you,
ATM

[logicalvelocity]

Your fiancé's income is not considered for child support purposes. Courts are generally referring to the spousal support advisory guidelines when determining amounts of spousal support. Quantum's as determined by the formulas are based on percentages, length of relationships and standard deductions. The formulas give no consideration to your living expenses or whether you living with another individual.

lv

[FL_Needs_To_Change]

From your post I gather that you are not yet married to your fiancée and are wondering how her income affects your existing financial obligation to your first family.

If this is the case, if your ex wife know a little more than the average person about how family law works in financial regards she could go back to court to vary CS once you marry.

Once you marry or officially become "common law" IE through CCRA, which is a paper trail to prove you both share the house hold expenses, then your "ability" to pay increases. I know a person in your boat. He married & then the ex took him to court for an increase in the child support amount under the claim that he had the "ability" to pay more since he now had a new wife/family that contributed to his living expenses, which ultimately freed up some of the income he had previously use for financially supporting himself. Since the expenses were now divided his financial load had decreased and the ex did win the claim for increased support despite the fact that the table amounts for his income alone were much less. The judge ruled that he indeed had more "ability" to pay and awarded an increase. Sucks doesn’t it?! Gotta' love family law!.


I am sort of in the same boat. However, once I found out about this friend’s misfortune I declined my fiancée’s proposal and 12 years later we are not married (as my man's ex is a lawyer and knows this can apply). And she has made it very clear that she will take whatever she is "entitled" to. Yes she is the epitome of the evil ex wife. If I were you, I would seek legal counselling on this issue, since this is not always the case. It is hard to win this claim if the second family includes children and any financial burden that existed as a result of the first marriage that the CS payer is financially responsible for. My advice is to get some legal advice. Paying a couple hundred now for an hour or two of legal advice may save you thousands later. Not to mention it will alleviate the stress this can cause if you cannot move on with your life.

From a case, Earle v. Earle, 1999 CanLII 6914 (BC S.C.)
It's importent to remember these two rules.

Ability to Pay

[18] The payment of maintenance is based on ability to pay. That means that it is based not only on what the parent does earn, but also what the parent can earn. The result is that parents have a legal obligation to earn as much as they are capable of earning to meet their obligation to support their children.

2. VARIATION - BASIC PRINCIPLES
[19] Before a judge can change a maintenance order that has already been made, there has to be a material change of circumstances since the original order was made. That is, the change must be of the kind that, if known by the judge when the last order was made, would have resulted in a different order. The change must be significant and long lasting. Otherwise, there will be uncertainty, which is not in the best interests of children.

[FL_Needs_To_Change]

Further to the above, from a case, MacMillan v. MacMillan, 1995 CanLII 4422

The other circumstance which has an effect on this case is the sudden loss of income by the--Mr. MacMillan. He's currently receiving Unemployment Insurance benefits. Part of his lifestyle is assisted by his marriage and his current wife and it's sometimes difficult for parties to‑‑of the divorce to understand that the second wife or second spouse is not responsible for the maintenance of the first spouse's children directly. There may be an effect but it is not a payment that will be directed from that person, be funnelled through the divorced spouse into the hands of the first spouse and the children...

This person was returning to court as he felt the previous judge made a ruling in error that he pay increased support which caused him to go into huge arrears. The ex wife was seeking to have these arrears paid as well as having an increase in support.
The result was that the second family income not be used to determine support to the first family. The CS was reduced to $50, and the SS was also reduced to $50 based on his income alone. The second judge felt that even the motor vehicle that the first wife felt she “needed” was far beyond her means and that the daughter’s desire for expensive equestrian lessons etc were unnecessary and dad should not foot the bill just because his second wife earned a high income. The guy was of course was required to provide all subsequent years CCRA assessments for the purpose of showing, should "his" income increase then so too would his financial obligations to his first family.

Like I said, every case is different, and every judge will rule differently based on the documentation before him/her. Get some real advice.

Best of luck.

FL

[ATM Machine]

Thank-you both for your replies. I'll definitely check with a lawyer on this one just to confirm.

ATM