Time period living together before partner can claim

[Elizabeth]

I lived with a man for approximately 2 years, then he was removed by police from the home for several months. After promises, etc. I took him back to try and resolve things. Everything went from bad to worse. Now 1 1/2 years later and for the last 16 months that I have asked him to leave he refuses until I give him money. I feel like a prisoner in my own home. He has taken over my garage, rooms, TV, etc. It is my home only, furnishings, I pay bills, etc. etc. From day one he has been paying rent. He would only pay cash. He has destroyed a lot of things in my home in the meantime. He came with only clothes. I do all maintenance required while he is either sleeping or gone out. His daughter comes everything second weekend and I am not allowed to do anything around my home as well as even smoke in my bathroom. I have asked him several times to move his stuff in garage and he has told me that his stuff is better than mine and that I should move mine. My question is - does he have rights to claiming for money or otherwise for a maintenance claim. If so does he have to prove that he has done anything.
Any suggestion at all would be greatly appreciated.

[Lindsay]

Hi Elizabeth,

I'm very sorry to hear about your tough situation.

In Ontario, you must having been living with your partner for three continuous years in order for you two to be considered a common law couple. Since you two were not together for several months at one point, I would say that you and your partner are NOT considered common law.

As far as removing your spouse from the home, he does not have an automatic right to a house that is solely owned by you. You may change the locks while he isn't home and refuse entry. This obviously may not be the best approach to resolving issues amicably, but it is within your rights.

As far as your spouse bringing an unjust enrichment claim, using the information you have given, IMO I doubt he would be very successful. Most importantly, you two aren't common law, and as such he does not have the right to claim unjust enrichment.

For argument's sake, however, let's say you two are a common law couple. I believe it would be difficult for him to show a court that he is entitled to an interest in your home since he has made no financial contribution to the home, and seems to have made no invaluable contribution to the home, such as general upkeep, household chores, help with renovations, etc. The onus is on your spouse to prove that he has contributed enough to be entitled to an interest in your property.

Take a look at what Jeff has to say on unjust enrichment on his common law separation web site.

Lindsay

[Elizabeth]

Thank you so much for your prompt reply. Even though I am getting cash rent he says he is common law. Yes we were not together for a time in between. He has done a few things, not many around the house because his parents were coming for Christmas. Again I paid for the materials. Therefore he has done little labour. On the other hand, I do laundry, clean house, cut grass, etc. etc.
Regarding changing the locks I tried that once. He kicked in my door. I called the police. He said we were commonlaw and I said he was a boarder. They told me I cannot change the locks without giving him a key because he lives there. They also told him he can do as he pleases again because he lives there. He has his own room. I packed up his clothes from several rooms and put in his room which caused him to be very angry. Result of this was ripped off the smashed up trim and doors, slamming, banging stuff and lots of screaming for weeks until I put his clothes back.
He does not like my family or friends and calls them names, to me only.
When his daughter comes every second weekend he has her ask me what we are doing. Sometimes I do things with them. When I don't again I hear about it with name calling and screaming. He is very nice when she is there. When she is not present we hardly even speak but then he is gone most of the time.
How can I get him to leave without involving the police?
Thank you again.

[Lindsay]

Hi Elizabeth,

The other day I made a post talking about how frustrating working with the police can be. If you change the locks, you DO NOT have to give him a key, that is your right. I find it very disturbing that to gain entry to any property, all a person has to do is say "I live here." Surely the police must understand that you are entitled to live in your home in peace without having a person living there with you without your permission.. that's ridiculous.

I would suggest that you serve him with some kind of notice of eviction, but he's not a tenant. Maybe if you did that and then changed the locks on the date of eviction, you could show the police your notice.

Would it make sense to call the police in advance and have them explain to you what they think your rights are? You shouldn't have to put up with your partner living in your house for the rest of your life just because he doesn't feel like leaving.

If I were in your situation , I would call the police and have your partner charged every time he causes damages to your property. I wish I had more suggestions for you.

Lindsay

[mom22galz]

Hi Elizabeth,

I'm dealing with a somewhat similar situation where my ex common law won't leave my house and displays juvenile behaviour. Maybe these two guys are twins?? Pretty sure it was my thread Lindsay's comment was about. Main difference for me is that we have kids in the home, and that makes it all the more complicated. Not that what you're going through is pleasant, but at least you don't have that additional pressure...

Please be cautious about calling him a border. If he is paying bonafide rental payments and has a room of his own, then the Tenant Protection Act may apply. In this Act, "spouse" means a person,
(a) to whom the person is married, or
(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act; (“conjoint”)

The Ontario Rental Housing Tribunal deals with landlord-tenant disputes, and eviction is not an easy process. You might want to check with them to see if they view him as a spouse or tenant under the circumstances.

My guess is the police saw it as a landlord tenant dispute based on the information they had at the time. A landlord can't change the locks and kick a tenant out without following protocols.

Had they seen him as your ex-CL partner who refused to vacate a home that is solely in your name, and who was uttering threats and causing property damage whenever you asked him to leave, I believe they would have assisted you in having him removed. Maybe even laid charges. Domestic abuse cases are typically guilty until proven innocent in Ontario (and his behaviour is well within the definition of abuse even if he isn't physically violent).

Moreover, if his prior removal was due to a domestic situation, a second offence can equal rather harsh terms for him. Stuck in jail until he finds a surety who can post bail and will agree to basically be his legal guardian, responsible to ensure he doesn't breach his conditions lest they forfeit the bail bond. And bail is much higher on 2nd offences too.

I can confidently say that if I wasn't worried about my kids, I would have called the police to have my ex removed long ago... they told me I was within my rights to do so. But with kids in the house it's an auto-CAS referral which frightens me (and the ex knows it, yet another control tactic).

Another option for you to consider is calling your local woman's shelter to get an advocate who can assist you. Shelters often put victims of domestic abuse in touch with lawyers who can offer some no cost legal advice. Visit CLEONet or the Ontario Womens Justice Network for more info on available legal help.

Good luck to you, may you soon find the peace you so desire and deserve.

[Elizabeth]

Lindsay, thank you so much. I have typed and hand written many eviction notices. He just tears them up. I have called the police a few times when he has done damage and just the same old response from them. Mom22galz I thank you as well. He was removed that one time for a domestic. He did have a guardian sign for him. After the several months of living at his brothers, his brother told him he had 4 hours to leave or he would call the police. He called me in a panic with no place to go. Stupidly I felt sorry for him because his ex was and is still making his access difficult. She is the one that calls most shots. e.g. pick daughter up at 8:00am and bring home 11:30pm. She is 11 years of age. Anyhow, I didn't want him to be refused to see his daughter which had been done many times, including Fathers Day. He signed over everything to his ex 2-2 1/2 years ago. He said she cornered him and if he didn't sign the papers (at a friend of ex's house) that he would not see his daughter. When he told me this I put him onto lawyers. He started and process but never continued. He said he won't keep paying lawyers. (I hope he still feels the same way). So I took him in but told him if we were going to be together we had to go to couple councilling. I have looked for a long time for councilling, and we tried a couple of them, but he does not like any of them. So Mom I see where you are coming from with children. My own have grown up and moved, but there is still a part time child involved. This being the case does make it that much more difficult.
Now I can see being used for when she is here. Other than that we do not associate.
Lindsay, I appreciate your advise. That being, going one or two steps further e.g. contact police in advance and show eviction notice. I did not want to have to go that route but I now believe I have no choice. His ex had him charged with assault and he spent a weekend at anger management (part of probation). The police charged him again when he was removed from my home. He pled guilty to both but still denies anything happened. It is the threats that I have a hard time handling. I never know what I am coming home to. I am in my 50's and I have worked so hard for everything I have. Thank you so much for the terrific advice.
Thank you all for everything. Please wish me luck.
I will keep you posted.

[mom22galz]

Hi Elizabeth,

I am completely STUNNED that with his record, the police are NOT treating your calls more seriously If he plead guilty to a DV charge in the past, it's on file regardless of his current perspective.

You can also get a copy of the restraining order that was surely put in place when he was removed in the altercation involving you. Having that in your hands if/when the police respond in the future should demonstrate he's a threat.

Maybe the police are more gung-ho in Durham because we've gotten a lot of media attention on the domestic murder front (Gillian and Ralph Hadley etc). Here, if it even smells domestic, they remove the suspected offender and press charges! Which isn't neccessarily all good either, as it's needlessly torn some families apart.

Not sure how much you trust your local force, under the circumstances! But perhaps quietly calling their attention to the Domestic Violence Death Review Committee Annual Report to the Chief Coroner 2005 and suggesting they may well be featured in next year's report for their failure to assist local residents might garner more support? Failing that, there's the advocate route mentioned in my last post.

I truly understand where you are coming from, Elizabeth. When my relationship went south, my original main focus was to ensure the kids' dad remained an active part of their lives. So I'm repeating to you what others have said to me: "If he treats you that badly, how much of a good influence can he be on his child/ren?" Just food for thought.

Please do keep us posted!

[Elizabeth]

I am back again and I am not any further ahead. I have tried everything to get him to leave. He is actually worse now. He is a total slob and every room in my house and garage has his stuff all over. Again, I pay all bills he pays nothing. Before he would pay for some food etc. but now absolutely nothing. I pay for the satelite dish, cell phones (under my name) and every bill. His dirty clothes and dishes which he refuses to wash are now starting to really smell and my home is really getting disgusting. He showers up to 3 times a day. That bill adds up too. I need my garage to put wood in it for the winter. My garage is 30 x 50 and he refuses to move his stuff so I can put the wood in. He tells me that my stuff in there is junk and that I should move mine because his is better stuff. I ask him to clean up his stuff and he just showers and goes out the door. Now he is mainly here to sleep, shower and sometimes eat. He still manages to scream at me and call me a lot of names (that I won't even repeat) a lot though. Quite often he will even scream at me before I go to work, then I have to try to concentrate on my job. So now I have starting going to work before he even gets out of bed. Just to avoid him. I am definitely his maid and I am tired of it but I also have a beautiful home that I do not want destroyed.
My question is - is it wise to pack up his stuff and change the locks. I am getting so frustrated. Mom22 he still expects me to welcome his daughter and do things with them. I can't anymore. When he does have her they take over my house e.g. TV, cooking and leaving a mess. Lindsay I know you said it could be done but is it really okay. I keep thinking about when the police told him and myself that he could do as he pleases because he lives here too. Also, they had said that I could not change the locks without giving him the key.
Please help me I am getting so frustrated and discouraged. I am working constantly to keep my home reasonably in order and work outside my home to pay my bills. Yet, I watch him get cleaned up and go out the door every night with no responsibility at all. He goes to fancy restaurants and buys whatever he wants and yet he still has a roof over his head at bills paid at no expense to him. It's not fair.
Thank you.

[Elizabeth]

I have just contacted the police and they told me that because he had given me money on occasion he was considered a boarder. The officer said it doesn't matter if he said it was common law or not. Then I was told to contact the Rental Housing Tribunal. They would then let me know of forms to fill out.
If anyone has advice I would really appreciate it.
Thank you.

[god knows the truth]

It absolutely blows my mind that b/c he contributes a little money for rent he is entitled to stay there. There are other living expenses like bills, food etc. that he isn't contributing to. Remember what"Mom" said about the landlord /tenant act and that 1 year constitutes a common law. I don't know if I'd go this route (unless I read it wrong).
This is paralel to if a friend or relative stayed with me for a visit, left for awhile and came back and paid a little money for food or bought some groceries, they now can stay as long as they want???
That still sound right, as lindsay already said.
I know the courts and legal system can be very strange(Believe me, I've been dealing with alot of craziness for several years now) but something as simple as evicting your ex should not be so difficult.
Don't you think that, considering the amount of money he contributes is so meagre compared to actual living expenses, he could be just contributing while he's 'visiting'?
I would definitely file damages against him. This in conjunction with his past charges shows he has a violent temper and is a threat to you. That may perk up the ears of authorities.
There has to be a way to get him out---it seems so simplistic.
Also, call the women's shelter and ask their advice; they're on your side.
Good luck