Saskatchewan, property act Vs Commonlaw Status and Unjustly Enriched ?

[nlorence]

I am in Saskatchewan, and have been living common-law for 6 years now with my recent ex. The breakdown of the relationship is like this.

2005 - may begin living together she is upgrading highschool classes and on a limited budget of $400.00 a month I ask for 200 towards the household and I will manage the rest

2006- she is done upgrading and gains/loses multiple jobs (quits) I have to keep forcing her to get employment again and again while we wait for her nursing school ( LPN courses)

2007 she begins her LPN courses and i believe is given 700 for living allowance. we discover that she is pregnant part way through which causes her to have to drop out of the second half of her first semester. (hypertension - bed rest)

2008 - she returns to school in her second semester, and continues through school with $700 living allowance between then and the end. No job is held during the summer months even at my request.

2010 she complets her LPN and takes a position as a nurse just a few months later

2011 October - she has been a nurse for just over a year now and we separated.

During the relationship she was never a stay at home mother other then the 3 months during bed rest and the 3 months after our daughter was born. We had my mother as a babysitter during the rest of the relationship.

I also have a son from another relationship who I support 50% of the time with me and 50% of the time with his mother

Our Daughter will be the same with my current commonlaw ex.

She is seeking for half of the homes equity, which initially I was reluctant to offer her as I supported her through 5 years. Total income she brought in would be 28,000 during that time and would hardly cover her own expenses as a smoker let alone put anything into bills and the home, but i did give in and write up a settlement for half the equity of the home asking that she pay half of the fees to break the mortgage contract which has not run up. She has now decided to go to court to get out of paying her half of the fees and take the entire 19,000 to herself leaving me all the bills and after 9,000 left in the homes equity. I know this isnt morally fair but what I need to know is can she do this. can she claim I was "unjustly enriched" and get away with it ?

[nlorence]

Just incase you cant see the edit the house is in my name only i owned one before we started living together and when the baby was arriving i moved to a new home to support the growing family she still was not employed so didnt have the credit

[MiViLaLoco]

I have a quick question...

...how was her education paid for? Are there Student Loans left outstanding?

[standing on the sidelines]

ask the bank if you stay with them for a new mortgage if they will waive the fees for breakng the current mortgage.

[nlorence]

her student loans were roughly 30,000 and 15,000 are left outstanding. we have been making payments and she had an amount forgiven for staying in the province.

As for the house, we owed 151,000 on it and its actual value is 189,900 (actual appraisal in Oct 2011) in order to get to the amount of the settlement I have to go to another lender because the bank would have it appraised and the other lender does not need that if i go to 85% of the house so the broker claimed it was worth 220,000 which is the amount a home sold for that is compareable to mine, so going that option is not possible.

[nlorence]

I suppose i should mention I make roughly 60k a year before tax's

[MiViLaLoco]

You will want to speak to a lawyer about this...but:

1. Has she been 100% paying the student loans by herself? If she has been is there enough left over from her pay to cover 1/2 of all the other household costs? You basically want to prove a money trail that shows she in no way contributed to the mortgage as 100% of her pay went to utilize her debt. It is also important to note...what she owes in student loans is 100% her debt...not combined debt. She cannot "share" her education with you and you get no benefit from her attaining her degree as you are no longer a couple.

2. The amount you owe her is based on the "appraisal" less what is owing on the mortgage then divided by 2. My caluclation shows $19,450.

It does not matter what a broker says your house is worth. You go by the appraisal at time of separation...period.

If I were you I'd offer her the $19,450. Less 1/2 of any "combined joint debt" you may have accumulated while together. This would be credit card debt if she had a credit card in her name on your account. Car loan payments if she now has the car, etc...you get the picture.

If she argues she wants more...then I'd argue that she also owes you $7,500 of student loans that have already been paid.

Note: I live in Saskatchewan and I successfully negotiated this type of arrangement with my ex.

In 5 years "we" paid off over $68,000 of his student loans by over 80% of his take home pay going to the debt each month. When we separated I successfully argued that had we not been together and my pay going towards the mortgage and household bills he would not have been able to pay down his debt so rapidly.

Since I was not benefiting at all from his degree...I was entitled to 1/2 of the paid debt to be applied against what I owed him from the home (which I had bought before we married).

I also successfully argued that 100% of my downpayment also come off the amount owing in equity as I had paid the monies prior to us beginning our relationship and therefore it would be unjust enrichment to him should I have to pay 1/2 the amount to him at the time of separation. In essence I argued that I would be paying 1/2 of my original downpayment again...to him...lol.

Now our separation was "mostly" amicable and we negotiated ourselves and had our lawyers sign off at every step of the negotiation. His lawyer advised him I had a strong case and the dollar amounts weren't worth fighting in court...my lawyer was amazed I had taken the approach I did and that is was very logical and fair...lol.

[nlorence]

you calculations are correct, and I have offered her the 19,142 which is the amount when you have the exact numbers. I have asked that she split the costs of breaking the mortgage and legal fees to do this, I have also asked that she help me pay half of the reassessment of the 2010 incometax that was done for me as we claimed commonlaw. the fees in total run up to 10k I believe it is fair to split the costs she does not even though she helped me spend the money.

As for her student loans they have been paid for by us both not just her, I have no outstanding loans that the family has been paying for just a line of credit I recently took to fix the car and only 2 payments were ever made on that in September and October. Other then that no debts other then my mortgage.

Do you believe if i could proove her income over the 5 years and then have it balanced out over each month, divide that up by bills and loans. then have a judge look to see her contribution to the home and take that percentage.

Also I don't believe this will hold up in any court but from day 1 of the relationship I explained I wouldnt consider marriage until she was finished her education because I want a dual income family. She only finished her School and became a nurse in the last 14 months. Nevermind its symantics we were living together for 6 years and it wont matter that I introduced her to people as my Girlfriend because of how I felt about the being finished School and into a career portion of the relationship.

[Rioe]

Okay, maybe I don't understand SK legal differences, but here's how I see it.

The house is in your name. You are common-law, not legally married. She lived there without contributing very much to the expenses for six years. You supported her and enabled her to significantly pay down student loans. There is to be no spousal support for either of you (at least, you didn't mention any).

She deserves nothing. You part, go your separate ways, you keep your house and your mortgage, she keeps her education and her remaining student loans, and you call it done.

You previously offered her a more than generous $19,000 less real estate fees, and she turned it down. I assume this is in writing somewhere as an official settlement offer? Let her take you to court then. She'll likely get told the same thing by the judge as I have just said above, and get nailed for the court costs because you previously tried to deal with her more than fairly.

She can't argue unjust enrichment if you can prove how little she contributed to the household expenses. If anything, you could argue that she has been unjustly enriched by you due to how much you contributed to her education and potential income, which you now won't benefit from. She benefited from you by living nearly rent-free for so long.

I'm glad to hear that you agree on 50-50 shared custody and aren't involving your daughter in your fight. I hope you can keep it that way as things escalate. In fact, I would suggest signing off all parts of the agreement for custody, access and support right now. Then you can argue the equalization in court as long as you have to, and it won't have an impact on the other stuff.