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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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06-09-2006, 05:08 PM
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Unjust enrichment / spousal support claim??
Further to my intro post... 13 year common-law relationship. 2 kids of the relationship. Power imbalance and histrory of abuse. Can he claim unjust enrichment or spousal support??
The family home is solely in my name. I provided the entire down-payment and have made all the mortgage, utility and tax payments, financed the few renos done etc. He hasn’t contributed much at all, not even in terms of labour or maintenance. But he is now playing the “stay-at-home dad” card claiming he’s going to seek half the assets just like any stay-at-home-mom would. And fight me for custody too as the "primary caregiver". Holy role reversal! I've increased my debtload during our relationship, not increased my wealth. Refinanced the house and increased my mortgage principal, didn't pay anything off! Pillaged my RRSP to pay for childcare so he would not have primary caregiver status. IMO, he has already been adequetly compensated before and has taken advantage of the situation due to my fear of him. He always had free access to money in the bank, which he abused. When he did briefly hold a job, he'd do selfish things like buy a $750 namebrand guitar with his meager pay, not contribute to family expenses. I've paid for everything. He also caused property damage in fits of rage on several occassions, some of which I can prove. Sad as it sounds, when you live with abuse, you learn to get proof whenever you can since your abuser is often the picture of charm in public. Then there's the whole spousal support concept. To date, he hasn't mentioned it. But given the huge difference in our earnings...? I'm sure if he ever actually speaks to a lawyer himself, he'll be told to go for it. I work full time in a professional unionized job, and he has only ever worked, sporadically at best, in unskilled labour. I'd like to think he's talking out of his butt right now, scared of losing his meal ticket, and hoping I'll cave like I have in the past and just let him stay. But I am a bit worried about everything. In all your experiences, do I have any serious concerns (with regard to him getting the kids or 1/2 my house that is LOL)? Reading the Peter vs Beblow case was pretty frightening! But in that case it was the abuse victim who was compensated, not the abuser: "the three elements necessary to establish a claim for unjust enrichment -- an enrichment, a corresponding deprivation, and the absence of any juristic reason for the enrichment -- are made out in this case. The appellant's housekeeping and child-care services constituted a benefit to the respondent (1st element), in that he received household services without compensation, which in turn enhanced his ability to pay off his mortgage and other assets. These services also constituted a corresponding detriment to the appellant (2nd element), in that she provided services without compensation. Finally, since there was no obligation existing between the parties which would justify the unjust enrichment and no other arguments under this broad heading were met, there is no juristic reason for the enrichment (3rd element). Having met the three criteria, the plaintiff has established an unjust enrichment giving rise to restitution." Does it matter that we are both the natural parents of the children of our common-law relationship, now aged 4 and 8?? What about the fact that he's repeatedly used our "agreement" that he'd stay home if we ever had kids as a defence for not working and allowing his family to live pay-to-pay on my salary alone?? Either of those possibly constitute juristic reason?? Seperation is always hard, when there are kids it's even harder, but when your partner is abusive on top of everything, it's almost impossible! Any thoughts, advice, legal precendents are much appreciated. Thanks all! 
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06-09-2006, 07:37 PM
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mom22galz,
You have a good grasp of unjust enrichment. To answer you question, yes your spouse could bring forth a claim forth for unjust enrichment, spousal support, periodic and or lump sum or both, custody, access, child support, sharing of CPP pension credits, sharing of pensions during the time of your relationship. However, its almost a wait and see approach. You have to face the claims when they arise and would he be successful? To analyze the situation you have to separate the issues. Custody best interest of the children using best interest test. Consideration would be given to primary caregiver etc. The views of the children. Would the individual ask for sole custody? Most likely you will ask for sole custody so then you would have competing claims for sole or sole for joint or perhaps he would be satisfied with access. Children's Lawyer Most definite - I would request to have the children represented. Access What is the current relationship between this parent and children. Is it good? If the relationship is established - suggests every 2nd weekend minimum. Conduct This will be the court's discretion if it effects their ability to parent. Abuse shall be considered, question is how much weight will the court give. Child Support Will depend on the custody regime, but table amount or split amount Extra ordinary expenses section 7 Prorated to reflect each parent's respective income regardless of the custody regime Spousal Support If there is a big disparity and one party has means and the other party has need and reside in a relationship continuously for 3 years. Spousal support is not gender bias. I read a few cases where the husband was successful in this claim. It will depend on the facts, and how it is presented to the court. Once needs and means has been established, the court would apply the list of criteria as listed in the Family Law Act R.S.O 1990 c. F.3 Section 33(8) and section 33(9) To determine an estimate amount and duration, one could apply the formulas as found in the federal spousal support advisory guidelines. These aren't law, However more and more courts are referring to these guidelines to determine quantum and duration. Unjust enrichment perhaps - hard to tell whether or not the claim would be successful. Every little item in your relationship will be put under the microscope. Who did what, who paid for what etc. I suspect they would have to consider your liabilities and what equity remains in your home. Everything will swing on the facts. If your children are older, their view could be considered. There is no real guideline, but I have read cases where a Judge considered the view of a 12 year old to be premature. At age 16, a child can withdraw from parental control, hence this suggests that at age 16 a child is mature enough to decide where they want to live and with whom. I did come across these unjust enrichment authorities at canLII. There is an abundance of authorities on this issue. George v. MacLean, 2002 http://www.canlii.org/on/cas/onsc/20...onsc10929.html Bell v. Bailey, 2001 - OAC - appeal allowed in part http://www.canlii.org/on/cas/onca/2001/2001onca387.html Yackobeck v. Hartwig, 2000 - OAC http://www.canlii.org/on/cas/onca/2000/2000onca533.html Trotter v. Trotter, 1998 - OAC http://www.canlii.org/on/cas/onca/19...onca10656.html Nasser v. Mayer-Nasser, 2000 - OAC http://www.canlii.org/on/cas/onca/2000/2000onca96.html Wylie v. Leclair, 2003 - OAC http://www.canlii.org/on/cas/onca/20...onca10265.html Roseneck v. Gowling, 2002 - OAC http://www.canlii.org/on/cas/onca/20...onca10612.html Halliday v. Halliday, 1997 - OAC - interesting reconciliation factor http://www.canlii.org/on/cas/onca/19...onca10686.html Larkin v. Labonté, 2002 - OSC http://www.canlii.org/on/cas/onsc/20...onsc10796.html Beckett v. Spencer, 2002 - OSC http://www.canlii.org/on/cas/onsc/20...onsc10829.html Ruster v. Ruster, 2003 - OAC http://www.canlii.org/on/cas/onca/20...onca10943.html Stewart v. Tudorachi, 2006 - OSC http://www.canlii.org/on/cas/onsc/20...onsc10531.html These cases seem to suggest is once the three thresholds for unjust enrichment has been established, as in Peter v. Beblow, [1993] 1 S.C.R. 980 the leading SCC authority on the matter - question is how much - lv Last edited by logicalvelocity; 06-09-2006 at 07:44 PM.
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06-13-2006, 05:08 PM
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Custody
Unfortunately I have no idea what he’ll do. Every day it’s a different threat. I understand that the courts prefer maximum contact with both parents, and I have no plan to prevent my ex from accessing his children. Given his recent exploits, I’d prefer sole custody with him having access. I would not be remiss to joint custody were he to demonstrate responsibility – which has been gravely lacking of late. Case in point, the 8yo had a PA day last week. Her dad’s not working so they were supposed to spend a special day together. She's having quite a hard time with all this and I thought 1 on 1 daddy-daughter time would do her a world of good. What did he do? Travelled into the big city to see a concert the night before the PA Day, got lost in his party life, and IMO, forgot about his child. He stumbled into the house around 7 p.m., after I’d already fed the kids dinner that night, and justified his actions as “reclaiming his freedom”. And I had to swallow my pride and ask a neighbour if they could watch my child since I had not planned to take the day off and had agreed to act for my boss who was off taking care of her kids herself! Last night he didn’t close the gate that runs across our driveway after he left for the night. This gate rarely ever gets open so it didn’t occur to me to check it when I let our family dog out for a pee. Next thing I know, the dog is on the front porch. I am soooo lucky he didn’t run away, he wasn’t even wearing his collar at the time! I can’t imagine adding the trauma of losing their pet to everything else the kids are being forced to deal with. He also knows my earnings can provide a decent life for our kids. He was raised in subsidized housing projects, and I don’t believe he’d want his kids being raised in that environment. But then again, I’m dealing with a rubber ball, so who knows. Most recently he’s been saying he’ll never see us again once he leaves. Other times, he’s going to buy his own house in the same general area. In any case, the kids are only 4 and 8, so I don’t think their views will hold much water. Children's Lawyer Can the children’s lawyer be of much assistance with such youngsters? I’ve researched their official role myself, LV, just looking for your valued opinion… Their dad has been causing a lot of harm to their psyches recently. He has threatened my life in front of them, and also threatened to kill himself. The latter was overheard by my mother who was on the phone with my eldest child at the time. I have also been guilty of badmouthing him while the kids are around – even though I know better :-{ I just want him out of my house before he does any more damage. Access Historically the relationship has been good – he played “stay-at-home-dad” for a while. Over the last 6 months to a year, since things have gotten worse between he and I, their relationship has been strained. I’d be thrilled if he’d agree to any kind of visitation schedule. And if he sets up another home where they can visit, I’m not opposed to weekday overnights. Every other weekend would be ideal as a starting point. Problem is he won’t commit to anything. One day he’s seeking sole custody and the next he’s moving out of town and will never see us again… It’s so frustrating when all I’m trying to do is get my kids and I out of this situation whilst ensuring their dad won’t go AWOL. Alas, I can’t make him do anything. But it sure is stressing me out :-o Conduct He was charged with assault, agreed to complete court-ordered partner abuse counseling and got a suspended sentence. However, the court records include some disturbing images of my injuries and quotes from him like “You F’n B*tch, You F’n B*tch, stop hiding behind the children” He was also observed smoking pot in our neighbourhood park by our daughter’s babysitter just last week. He packed up some belongings yesterday, and put a lot of the children’s things into his boxes as well. Mainly child oriented video games and DVDs, a lot of which were gifts to the children. They were extremely upset that dad was taking their things. I know he intends to sell the items, not keep them for the children’s use during their time with him. He packed our entire 300+ DVD collection and 500+ CD collection. He also packed the charger to my cell phone and my hair straightener which was a mother’s day gift from the kids. Don’t personally care much if he takes things of MINE, but do care about him taking the kids things. Child Support Given the difference in our incomes, should I get sole custody, I’m willing to forego receiving the tabled amount provided he uses that money to rent a 2 bedroom apt where the kids can visit him, and exercises his access of course. The table amount based on his meager salary is pretty much equivalent to the difference in rent between a 1 and 2 bedroom apartment in our area. If he does not exercise his access, I’ll seek child support but doubt I’ll get anything. Whenhe does work, it's under the table a lot. If he knows the FRO will be on him, he’ll surely avoid using his SIN and will live under the radar. Extra ordinary expenses section 7 Daycare costs are high, but I don’t think these expenses will come into play. Spousal Support My earnings over the course of our relationship have been a lot higher than his. When he’s had what he considers a “good job” I earn about triple. But he has remained unemployed quite often, and maintained an underemployed state for the entire duration in my books. The kids have both been in full time care for about a year now, and he has still been unable to keep a full time job. Looking at the Federal guidelines though, I’m not sure if the “with” or “without” children guidelines would apply. I think I’ll likely have custody of the kids, but could still face a claim of spousal support. Also, does 33(10) often come into play at all: “Conduct: The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship”? Unjust enrichment Thanks for all those canLII links, I’m still reading through the precedents!! Removal from home If he continues to behave so strangely and utter threats, I’ve thought of calling an ambulance to assess his mental state. He barricaded himself in the basement recently, took the land line phone off the hook and stole/brought my personal cell phone down there with him to prevent me from making any external calls. He has repeatedly said he would kill himself before going back to jail – as he spent about a week in custody after his assault charge. I’m not certain if calling an ambulance to have him removed from the home would also trigger CAS involvement (as it does when the police are called in for a domestic situation). We need to stop exposing our children to our animosity, and it does not seem likely he will leave the house voluntarily. Since his name is not on title and we are common-law, I know there are no automatic property rights. I want him out of my house, but would prefer not to involve the police if at all possible. That said, in the interest of personal safety, my eldest knows she can call 911if things get scary and she’s afraid something bad will happen. I just hope it wont.
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06-13-2006, 11:27 PM
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mom22galz,
You have made some interesting points. Custody, Focus on the best interest of the child. If the other party puts forth a Joint Custody claim, the onus will be on you to prove on the balance of probabilities why this custody regime of the children will not work out to the benefit of the children. Children's Lawyer The role of the children's lawyer is to represent the children and put forth their views. They may do a parental assessment and parenting capacity of each parent. They may question 3rd parties. It is not mandatory to have their involvement. Even if the court order their involvement, the children's lawyer reserves the right to be involved. Access If you bring forth an application, state something to this effect "reasonable access on reasonable notice" on this issue. This gives you the discretion of determining the child's access. Conduct The courts are to consider the conduct of each parent. However, the court's still have the discretion on whether to apply the conduct to a custody matter. Child Support Custody of a child has nothing to do where one stands on the economic ladder. The best interest test determines custody of a child. Remember that the logic behind spousal support is to allow each parent to support the child in an equitable fashion. As listed in the Family Law Act R.S.O. 1990 c.F. 3 section 33(8) http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK36 Purposes of order for support of spouse 33(8) An order for the support of a spouse should, recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9). Extra ordinary expenses section 7 as I mentioned, these expenses are prorated to reflect each parent's respective income. I believe also the tax deduction for such expenses will also be shared. ie: daycare Spousal Support Once the threshold has been established needs and means, then question is how much and for how long. Everything will swing on the facts. If one parent allows a situation to go on ie underemployed for a number of years, the courts will see that you accepted that arrangement. Removal from home Quote:
If a party is making outright statements that they will take their own life, this to me questions their ability to parent a child. You may not have any other resort to get the individual out of the house other than police assistance. IE: during school hours when the children are not home. If you do get the individual out of the home, change the locks. Children being exposed to parental issues such as what you have mentioned is not a good situation. lv
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06-14-2006, 10:16 AM
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Quote:
However, the case worker was very clear that if I was unable to prevent the children from bearing witness to his abusive behaviour in the future, and they were again called to investigate my home, at that point they would find the children in need of protection. I recognize that I made a huge error in judgement by allowing their father to come back into our lives after he completed that abuse counselling the courts ordered. Don't need to reiterate my reasoning. I believe you understand the dynamics of power imbalances and why women stay with/return to their abusers... All I want now is to keep my kids safe and lead a peaceful life without constant animosity and stress in the household. It is past time he left, but since he quit his job (again) he has no source of income. And he is alienated from his family. What am I to do? I figured since I have documentation of his past assault charge, that would suffice for establishing conduct. My kids are my proverbial "raison d'etre" and I would be devestated if they were taken from me when I am finally strong enough to get away once and for all. My eldest already sees me as an ogre for sending him out of the house. Even though she knows it was her dad who first said he needed his freedom again and could no longer tolerate me. I believe he was just trying to get me to beg him to stay etc... But I didn't, and when move out day came, he concocted a story about having lost his rental and then up and quit his job. But it's almost like she feels sorry for her father. And it is even more alarming that she apparently views our bad relationship as acceptable. The lawyer I spoke to also mentioned the same thing about my silent acceptance of his employment status. Doesn't anyone understand that in the climate of our abusive relationship, I just provoked his anger if I nagged him to get a job that would basically fund childcare for the kids, but put us no further ahead financially? He has very little motivation. He's never been able to earn a high enough wage to make it worthwhile to pay full time daycare fees (i.e, the most he cleared when briefly employed full time was less than $200 per MONTH more than what I've been paying towards daycare fees for our two kids over the last year or so -- financed by draining my RRSPs, and lessening the impact of any potential primary caregiver claim he may put forth). In fact, if ever I did bring up his re-entering the workforce in the past, he'd state insistently that before we had children, we both knew he'd stay home with them -- as if this is some kind of defence for a man to remain unemployed and have his family live pay-to-pay on his spouse’s salary alone. But that was the nature of our interaction... For the last while, I would just sit in silence when he went off, since anything I'd say would only make it worse. Custody For planning purposes, once he is actually out of the house, I'd appreciate your opinion as to whether I should immediately file for interim custody, or let the de facto situation establish a status quo first. I am so afraid of doing something the courts may see as vindictive or uncooperative. The women's shelters say get an order ASAP, but I know he won't have a suitable place for the kids immediately, so perhaps it's in everyone's best interest to establish a status-quo first? Thank you so much for all your insight, lv! I appreciate it more than you'll ever know.
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06-14-2006, 08:25 PM
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mom22galz,
you mentioned, Quote:
On separation and until a court orders otherwise or a separation agreement is entered into, each party has coextensive custody of the children. However, the other parent's authority to act as a parent is suspended. A Status Quo arrangement carries a great deal of weight especially if there is no agreement or order. It demonstrates that the one parent agrees with the living arrangement of the children. The courts don't like to interrupt a status quo living arrangement especially if everything is going well for them. Stability is very important for children. lv
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06-14-2006, 10:09 PM
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I think that based on the fact that you have been the primary caregiver and that there is a history of abuse, a judge will err on the side of caution. That might mean every second weekend and then it might not. Children's lawyer would definitely help bring some context to your case.
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06-16-2006, 11:50 AM
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LV,
Thanks for that insight. I would prefer to let the status quo custody establish itself since he really doesn't seem to have any stable future plans at present. He utterly refuses to even start negotiating any kind of seperation agreement. Divorcemanagement, Unless I've missed something in my analyis, HE has been the primary caregiver for the kids since he never maintained employment, and I was more the "breadwinner". For the last year, both children have been enrolled in full-time childcare/school. I put them in paid care upon receiving legal advice that this action would lessen the strength of any potential custody claim he could make. But for most of the preceding 7 years, he played stay-at-home-dad. Spousal Support Something occurred to me last night whilst laying awake again... We maintained seperate residences for close to 6 months while he was doing that counselling after his assault charge. There was a no contact order in place, the whole shebang. It has not been 3 years since his return to the family home. Does that relationship breakdown impact any potential spousal support claim he could pursue against me?? Thanks as always!
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06-16-2006, 08:51 PM
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mom22galz,
you mentioned, Quote:
The law is clear under the Family Law Act for definition of spouse for spousal support purposes. http://www.e-laws.gov.on.ca/DBLaws/S...f03_e.htm#BK32 PART III SUPPORT OBLIGATIONS Definitions 29. In this Part, “dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”) “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, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6). If you have children together, the 3 year continuous is irrelevant as long as your living in a relationship of some permanence. LV Last edited by logicalvelocity; 06-16-2006 at 08:58 PM.
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06-19-2006, 01:42 PM
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Sorry about that last Q, lv. I did know the duration was irrelevant if there are kids. Just had a brain drain.
He is still refusing to leave the house. I recognize that it's a control issue, but I want him to move out and am unwilling to wait for him to have his proverbial ducks in a row. I've been waiting 13 years for that and it's never happened... Yesterday (Father's Day) was a joke. When the kids tried to give him their gifts in the a.m. he rambled on in self-pity about being undeserving and refused to even open the package. Then he cancelled plans to take them to a local parade and fair cuz he was tired (after being out all night doing god knows what). The eldest ended up playing at her friend's most of the day and I took the youngest out shopping with me -- he didn't even want her to be alone with him while I did groceries. This from the man who claims his life revolves around his children, and fails to see the damaging impact of his statements and gestures on their little souls. Someone what to give me the courage to put his stuff outside and deal with the fall-out? I'm too afraid of both his reaction, and that of our eldest child who already sees me as the bad guy :-o
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