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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 05-14-2017, 02:07 PM
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Default Am I in A Common Law Relationship?

I normally spend 6 months a year in Ontario Canada and 6 months in a foreign country. In the foreign country (not USA), I have a girlfriend who has lived in my condo for 4.5 years. I pay all the bills for the condo and provide limited financial support, but in the last few months she has obtained a full-time job. She is not on title for any of my real estate holdings, here or abroad. There are no children.

1. Am I in a common relationship with my foreign girlfriend?
2. Can she contact a lawyer in Ontario and get a court order for me to pay her spousal support or obtain a portion of my assets, which are held exclusively in my name?
3. If I invite her to Canada for a few months, am I exposing myself to negative financial consequences and liabilities?

The foreign country does not have common law relationships.
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Old 05-14-2017, 04:04 PM
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I am familiar with Sternat v. Hell, 2010 ONSC 1522, COURT FILE NO.: FS-09-4837, DATE: 2010-03-12

My case differs in that my companion became financially independent during our time together, completely opposite in Sternat v. Hall, where the companion became financially dependent. My companion obtained a university degree, during our time together, which helped her obtain a suitable job.
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Old 05-14-2017, 07:30 PM
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I think the actual answer is something along the lines of "you will never really know until your relationship has broken down and you are standing in front of a judge".

As an alternative to guessing, why not just have her sign a cohabitation agreement that explicitly protects your property and rules out spousal support? If she refuses, don't bring her to Canada.
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Old 05-14-2017, 07:42 PM
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According to Canadian laws you are in a common-law relationship - you have lived together for 4.5 years. Perhaps you should check the status of your relationship in the country in which you reside with your g/f?

Your g/f only recently obtained a job and is probably not even past a probationary period. I don't think she would be considered financially independent - she is still supported by you as she lives in your condo.
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Old 05-14-2017, 08:21 PM
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She does not reside in Canada. She lives in another country. She needs to satisfy the jurisdictional requirement in the Divorce Act of being “ordinarily resident” in Ontario. If you bring her to Canada then she might be able to do something. But until then, I believe this is the case law that would help you

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Turning to whether Ontario has jurisdiction under the common law test that requires a real and substantial connection, I agree with the parties that, in the context of marriage breakdown, the presumptive connecting factors are necessarily different from those identified by the Supreme Court in Van Breda in the context of a tort case. …

[47] While they differ in their view as to where, in this case, the “real home” or ordinary residence of the mother is, both parties submit that the location of the “real home” or “ordinary residence” should be a presumptive connecting factor. This in my view makes eminently good sense. Ordinary residence and habitual residence are the jurisdictional tests under the Divorce Act and the CLRA, respectively. Accepting the “real home” or “ordinary residence” as a presumptive connecting factor, and having concluded that the motion judge did not err in finding that the mother was not ordinarily resident in Ontario, I agree with the motion judge that “[t]he facts of this case do not support the existence of a presumptive connecting factor that would entitle this court to presume jurisdiction.” The mother therefore did not satisfy the “real and substantial connection test”, and the courts of Ontario do not have jurisdiction over the mother’s corollary claims under the FLA. Given this, it is not necessary to address the parties’ arguments on the issue of forum non conveniens.
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Old 05-15-2017, 12:08 AM
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^ Further to that, seems only ONE of you would have to be living in Ontario. Property must be decided in the country they are in, unless you have property in Ontario that she is after. If there is only property in that country then you could simply ask that she seek relief in her country. If you have property in Ontario then she could seek that in Ontario as well as spousal support. I'm just not sure how she could attend a trial here if she can't come to Canada in the first place (assuming she doesn't have any right to travel to Canada).
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Old 05-17-2017, 03:29 PM
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Quote:
She needs to satisfy the jurisdictional requirement in the Divorce Act
They are not married - the divorce act is not relevant to their situation.

Quote:
Place where proceeding commenced
21.11 (1) Proceedings referred to in the Schedule to section 21.8 may be commenced in the Family Court if the applicant or the respondent resides in a part of Ontario where the Family Court has jurisdiction.
Citation: https://www.ontario.ca/laws/statute/90c43#BK35

This is adopted in Rule 5(1) of the Family Law Rules: A case shall be started in the municipality where a party resides.

Therefore, a non-resident may file a claim in Ontario for support from an Ontario resident.

While provincial rules often mirror the Divorce Act, there are differences and those differences can be important. Know what act you are working under.
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Old 05-17-2017, 11:10 PM
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Quote:
Originally Posted by trinton View Post
^ Further to that, seems only ONE of you would have to be living in Ontario. Property must be decided in the country they are in, unless you have property in Ontario that she is after. If there is only property in that country then you could simply ask that she seek relief in her country. If you have property in Ontario then she could seek that in Ontario as well as spousal support. I'm just not sure how she could attend a trial here if she can't come to Canada in the first place (assuming she doesn't have any right to travel to Canada).
My understanding, in a common law relationship, is that only property to be divided is that property which was jointly purchased, and which can be proven as such. In this case there is no joint property in the other country or Ontario Canada.

Spousal support is my concern. In one case it said "Even where a spouse has the capacity to be self-sufficient, if the spouse’s ability to enjoy the same standard of living as during the relationship has been adversely affected as a result of the breakdown of the relationship then support, compensatory support, is appropriate to ensure that the economic impact of the breakdown is equitably shared."

Secondly, "Whether or not a spouse requires support is related directly to “the dependent’s capacity to contribute to his or her own support”, (s.33(9)(c) of the F.L.A.) which, in turn, is relevant when considering the spouse’s “obligation to provide support for himself or herself…to the extent that he or she is capable of doing so.” (s. 30 of the F.L.A.)."

She could come here if she is invited to Canada, by a Canadian and that Canadian can financially support her during her stay, or if she has proof of adequate funds for her stay.

Can she commence an action for spousal support without coming to Canada? Perhaps through a law firm?

She has passed her probationary period for the job. Other employees in the same position and salary support themselves in that country.

I like the idea of a cohabitation agreement. I guess it would have to be written in both English and her country's native language?
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Old 05-17-2017, 11:17 PM
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Originally Posted by arabian View Post
According to Canadian laws you are in a common-law relationship - you have lived together for 4.5 years. Perhaps you should check the status of your relationship in the country in which you reside with your g/f?

Your g/f only recently obtained a job and is probably not even past a probationary period. I don't think she would be considered financially independent - she is still supported by you as she lives in your condo.
s. 29(a) of the Act, which provides as follows:
“29. In this Part,...
“spouse” means a spouse as defined in subsection 1(1), and in addition includes
either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years...”

So "continuous" is consistent with 6 months together, 6 months apart?

In her country, there is no status and no common law relationship, either you are married on paper, or you are not married.

Last month she passed her probation.

Others, who have the same job and salary as her, live adequately on the salary. She lives better than her co-workers because she lives with me.
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Old 05-17-2017, 11:43 PM
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I can pass on some advice from someone I used to know very well who seemed to be in the same situation as you are.

He was/is a very successful professional man... very wealthy. He retired early (50). He was never married and has no children. He has traveled the world. When I met him he was spending 6 months in Thailand and 6 months here. He had been doing that for a few years. He had a few girlfriends (typical) but finally ended up with a favorite. I asked him one time why he didn't bring the g/f with him back here to Canada because it was obvious he missed her. He said that he worked hard and didn't want to see his hard-earned money go to lawyers and a g/f if/when the relationship ended. He said he knew of many men, like him, who had a foreign girlfriend and who lost major money and he wasn't about to do that, not for the very best sex he had ever had in his life.

Unless you are willing to take 1/2 of your net worth and give it away I'd think seriously before importing someone. It sounds as though the 'world is your oyster' - why ruin a good thing?
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