Common Law miths dispelled

[FL_Needs_To_Change]

Below are a few CL dispelled myths that CL is the same as married when splitting or divorcing.

Support
Seven Canadian jurisdictions have defined “spouse” in such a way as to extend an entitlement to or pay support at the end of a common-law union. Alberta, Quebec, P.E.I. and the Northwest Territories do not extend support rights and obligations to common-law spouses. All other Canadian jurisdictions do in one form or another.

Briefly, the variations are as follows:

Jurisdiction Criteria for Common-Law Spouse
Alberta, Quebec no common-law spouse entitlement

P.E.I., N.W.T. to support

British Columbia 2 years of cohabitation

Manitoba 5 years of cohabitation and substantial dependence between people involved, or, 1 year of cohabitation and a child

New Brunswick 3 years of cohabitation and substantial dependence

Newfoundland 1 year of cohabitation and a child

Nova Scotia 1 year of cohabitation

Ontario 3 years of cohabitation, or child and a relationship of some permanence

Saskatchewan 3 years of cohabitation, or child and a relationship of some permanence

Yukon a relationship of some permanence



Judges consider a set of criteria built up from cases, which have gone to court when examining a common-law relationship.

The court considers the following:

Did the partners share accommodations?

Did one render domestic services to the other?

Was there a sharing of household expenses? (not necessarily equal sharing)

Was there sexual intimacy between them?

Are they of the opposite sex?

What was the nature of their relationship?

Were they husband and wife for all intents and purposes?

The courts have found that where there has been a relationship of such significance that it has led to the actual dependency of one party on another or the expectation that one will support the other in the event of financial crisis, an entitlement to support arises where there is a case of need.

Assuming the individual qualifies, the amount of the support and its duration is calculated in the same way that it is calculated for legally married spouses who have separated. Aspects that can make these cases different include the length of the relationship and the court’s willingness to make support orders time limited, that is, not open-ended or indefinite for common-law spouses.

It should be noted that in many jurisdictions this obligation for support of a common-law spouse might also apply with respect to an estate. That is, if a person dies leaving a common-law spouse as his or her survivor, that person may be able to obtain an order of support from the estate. This was the case with Yolanda Ballard who wanted to be considered a spouse within the meaning of Ontario’s Succession Law Reform Act.

Child Support
Common Law couples are subject to the Child Support Guidelines when they separate.

Property
In Nova Scotia in 2000, a woman who was entitled to nothing after years of cohabitation challenged the court decision. She argued that denying common-law partners the property rights available to married spouses was unconstitutional. The court agreed. So now common-law spouses in Nova Scotia have the same property rights as legally married spouses. This is the first and only province where that is true.

In all of the other provinces and territories the Matrimonial Property Laws deal only with married couples. Common-law spouses have no statutory property rights. It doesn’t matter how long they have lived together, if they do not marry, the only property they are entitled to when they leave is their own property. This, of course, raises a problem. The courts have developed some general guidelines over the years to help couples sort out such property division matters:

In the absence of an intention to the contrary, each person may leave the relationship with any assets they brought in and any acquired in their name alone during the relationship.

The court will not allow one person to be “unjustly enriched” at the other person’s expense.

Where one of the persons confers a benefit on the other person and suffers a corresponding deprivation as a result and there is no other legal reason or justification for the enrichment, the court will “correct” the situation through the use of a device called the “constructive trust”. A constructive trust is simply a fancy legal way of saying to the spouse who has the property in his or her own name (called having “title”) – you are actually holding that property or part of its value in trust for your partner. The court then orders the part considered to be held in trust to be paid over to the other person. This is what happened in Rosa Becker’s case. Mr. Pettkus was found to be holding part of his beekeeping operation’s value in trust for Rosa. The value of the part held was the amount of the judgment.

Each case is different. The size of an interest in a piece of property will depend on the facts of the particular case.

A contribution does not automatically entitle a person to a half interest. The court will determine what is a fair return on the actual contribution.

The court prefers a direct connection between the contribution and the property in question. It does not necessarily have to be a contribution directly to the acquisition of the property. It could be some act that preserved the property, maintained it or improved it.

Merely being a supportive good partner or paying some household expenses will not necessarily entitle one to a share of a property. Remember, there must be the aspect of one being unjustly enriched at the other’s expense. The case law is evolving on this point.

There have been cases that found home, childcare and housekeeping services to have been a “contribution” since in such cases the spouse who cared for the child or did the house duties freed the other spouse to earn and acquire property.

The court will consider the intention of each person but does not insist that both have the intention. It will consider what each person reasonably expected to happen or what interest in the property they reasonably expected.

If the property in one spouse’s name is there because it was a gift from the other spouse, then the court will not “correct” the situation. One cannot be “unjustly enriched” by a gift.

Pensions
All pension plans provide a death benefit payable when the member dies before retiring. Many also provide a continuing lifetime pension to the non-member spouse who survives the retired member. Whether or not a common law spouse qualifies for these death and survivor benefits is discussed more fully in another chapter.

When it comes to the Old Age Security and Canada Pension Plan, you are entitled to survivor’s benefits if your common law spouse dies, just as you are if your husband or wife dies, and you may have to split your CPP pension credits if you end a common law relationship, just as you would if you divorced.

Everyone acquires Canada Pension plan benefits over their working life. The Canada Pension Act provides that persons of the opposite sex who had been living together for at least one year and who have been separated for more than a year may apply to the Minister for a division of pension credits. So where a working spouse acquires credits, the other spouse may apply to share them. An application must be accompanied by the “necessary papers” of course! Birth certificate, Social Insurance Number, addresses (current and at cohabitation), relevant dates of cohabitation and separation and, for some reason, the reason for the separation.[Surviving Your Divorce, by Michael Cochrane, page 145]

Summary
From the foregoing it can be seen that the rights of common law couples are not the same as married couples when the relationship breaks down. However, there still are rights, but it can be very difficult impossible for individuals to enforce these alone. It is advised that you use the services of a lawyer.

[startingover68]

Is there any recourse when the other party is obviously stalling?

My 'X' and the father of our 3 children (with varying degrees of special needs) decided that he needed some space after a 15 yr relationship, despite his regular and constant business travel. We utilized mediation 2 yrs ago and the Memorandum of Understanding (which now I disagree with in regards to the custody issue due to the children's educational needs and advocacy requirements) needed to be made into a legal separation agreement through our independent legal council. Finally after my insistence we went to court whereby a temporary court order for Child Support & Spousal support was awarded. No other decisions have been made and since going to court, he has fired his lawyer.

Due do control issues and a huge lack of communication nothing else has been settled. Most recently I have been threatened with the foreclosure of the common residence (of which he is the only one on title & mortgage) where the children and I reside. I am unable to negotiate payment with the company directly as he will not provide them with the authorization to disclose any information to me. As the primary care give (stay at home 'wife' and mother) I have not worked full time in over 17 years. By staying at home and supporting his work schedule, he was able to provide well for the family - consistently making between $100 - $200,000.00/yr over the past 10 - 12 yrs (and we were income splitting for 2 yrs prior to the split).

In my opinion, morally and ethically there is no question as to family responsibility. The question remains, legally; where do I stand? How can I get final decisions / resolutions for the access, custody and support of the children as well as any property /assets? I do have a lawyer, but am having difficulty with the system and the fees. As such, any support or advice would be appreciated! BTW, I am in Ontario. Thanks...

[FL_Needs_To_Change]

talk to your lawyer about getting an order to stop any attempts to have you removed from the home. They can provide an order to allow you sole possession of the home until the matters of assets are dealt with Seek also for disclosure from the ex on anything needed to expedite the process of resolving your issues surrounding the possession of the home and maintenance (financial) thereof.

You have allot of rights and he cannot drive the decisions on issues just because he is unwilling to be co-operative. Good luck
FL

[Strider22]

You might want to consider correcting the income splitting.

If you did not do the work to earn the money then jointly you have filed false information with the CRA to evade taxes. This would mean that you overpaid the taxes and would get a refund and he would have to pay the taxes due on the income you did not earn but he did.

He should consider using the voluntary disclosure program;
Voluntary Disclosures Program
to avoid extra penalties.

You don't need the voluntary disclosure program as you are coming forward to correct the falsehood and the program was set up to provide an opportunity to avoid penalties. You will not owe penalties nor will you be charged with fraud.

[billm]

Originally Posted by Strider22

You might want to consider correcting the income splitting.

If you did not do the work to earn the money then jointly you have filed false information with the CRA to evade taxes. This would mean that you overpaid the taxes and would get a refund and he would have to pay the taxes due on the income you did not earn but he did.

He should consider using the voluntary disclosure program;
Voluntary Disclosures Program
to avoid extra penalties.

You don't need the voluntary disclosure program as you are coming forward to correct the falsehood and the program was set up to provide an opportunity to avoid penalties. You will not owe penalties nor will you be charged with fraud.

Yes but since they were together during that time, any taxes assessed to him will have to be paid 50% by her, and any refund due to her will have to split 50% with him, so why would they do that?

[Strider22]

>> Yes but since they were together during that time, any taxes assessed to him will have to be paid 50% by her, and any refund due to her will have to split 50% with him, so why would they do that?

They are his taxes. He has to pay them. End of story. Similar happens all the time. One spouse got a tax deduction because the other forgot to claim a T4. They separate. CRA finds the missing T4 and reassesses both. He losses the deduction and owes money. As she is low income, she gets all the taxes collected refunded. Same type of situation when one spouse makes a correction. Most common "tip" is from ex spouses and ex business partner.

Perhaps you could explain why you think the taxes and refunds would be split. There may be some truth to this being fair but as you probably know by now... life isn't fair.
You can't expect the taxman to care about your sex life?

If they were still together, the splitting would have to be agreed to between themselves. I have friends where one was quite upset to find out where the money came from because they were not told.

It also raises the income to the appropriate level; to what is being earned by the higher income spouse. Then child support can recognize actual income.

[billm]

My comments were based on a married like relationship - since this is common law, perhaps the debts and assets were split a different way, but given the lenght of union and that there were kids involved, probably marriage divorce rules were applied (split everything 50/50). I make these comments in that context.

Originally Posted by Strider22

..
They are his taxes. He has to pay them. End of story. ...

Perhaps you could explain why you think the taxes and refunds would be split. There may be some truth to this being fair but as you probably know by now... life isn't fair.

Debts and assets should be split 50/50, not based on timing etc. A tax bill is just a debt, nothing special about it because it is a tax bill, it is still just a debt. It seem you agree that it should be treated this way, and that was my point. If the assets (house etc), get split evenly then so should the debts, and taxes are part of that. Simple.

Originally Posted by Strider22

.. You can't expect the taxman to care about your sex life?

Its not who owes the money to who, it is about splitting things fairly - if you were sharing equally in the income, then you must share equally in the taxes on that income. Who the tax man goes after is irrelevant.

Originally Posted by Strider22

.. If they were still together, the splitting would have to be agreed to between themselves.

It probably was decided in that the money was shared equally, so so should the taxes.

I truly fail to understand why some people consider a tax debt to be any different than any other type of debt (my ex included!).

[CSAngel]

Can anyone confirm whether or not this is true? I was in a CL relationship for 10 years. My ex didn't do his taxes so I stupidly claimed single not really knowing what else to do. Of course while we were together he enjoyed my large tax return. Now that we are separated he intends to claim common law to reduce his tax bill. If he does so I will of course be re assessed and owe a lot of money. Does that mean he will be responsible for 50% of my tax debt?

I have to say, separation is a HUGE learning experience. NEVER AGAIN.

And thank you, thank you, thank you to the person who posted the link about the Voluntary Disclosure Program. That is a huge relief for me.