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Old 12-30-2013, 10:48 PM
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Default 22-Months Common Law & Spousal Support

First off, thanks to everyone who contributes to this board. The education I've gained from this forum over the past few months has been tremendous. As things are getting serious with my separation I have some questions around Spousal Support and a Common Law relationship that I'd appreciate any feedback on.

My Situation:
In a relationship for 5 years, we started to live together in January 2012. She was married prior and finalized her divorce that same month. After moving in, things started taking a turn for the worse – we broke up multiple times (initiated by her) and she moved out on three occasions (for a few days). She became pregnant in December 2012 and moved out again for a week (I have email documentation of her breaking it off with me) but I felt extremely bad that I was letting the mother of my child go through this alone so I told her to stay in the house and we’d figure this out when he was born. We essentially lived apart under the same roof (not much love and no physical relationship since my son was conceived). My son was born on August 21st, 2013 and the relationship got more toxic given a combination of all the stresses that come with being new parents as well as her having PPD. This culminated in a massive argument in October of 2013 and her leaving the house to move in with her mother 25km away. Currently, as our son is breastfeeding she is restricting my time with my son to 1hr twice a week an a couple hours on the weekend. I have seen two family lawyers but have not retained anyone as we're going to try mediation first.

Financial Sitution:
Her - 32 - $47K per year (42K as office acct/receivables and 5k from teaching yoga)but she is currently on Mat Leave until August, no investments

Me -36 - $185K a year but I’m in sales so I could make my base 1-year (109k) or more depending on what I sell, 200K in investments and I own a 500K house with 240K left on the mortgage (all in my name)

What she wants:
Money $$$ - Her lawyer and he mother (who seems worse than any lawyer) told her she will get SS for 5 years (via divorcemate calculation) until my son is in full-time school and he’s also telling her she will get the equity in the house

Does not want to give me 50/50 access to my son and is using breastfeeding as a way to hold him hostage at this point. “I can breastfeed until he’s 18 months and you're a bad father if you think he should be on formula” is her comment to me.

What I want:
What’s best for my son – 50/50 parenting
To pay my CS in full
Not to fund her trips to trips to Tiffany and Lulu Lemon which SS will go towards – this includes not funding her to never work again (her preference)
I will consider giving her a 1-time payment to help her get a place and transition

What I’ve done to date:
I’ve met with a family lawyer and he insists that she will not get SS for 5 years based on a 22-month Common Law relationship
He confirmed that she has no right to restrict my time with my son
He told me to commence paying CS immediately, which I started on December 21st
He told me mediation or mediation/arbitration would be the easiest option and I could let the lawyers settle the financials if there is an impasse

Where we are at:
She has asked me to go to a Mediator of her lawyers choosing. I did an initial call with the mediator and she is all for shared parenting and does not get kickbacks from the lawyer’s referral. I’m in the midst of setting up the intake appt’s.

My ex will not go through mediation to only discuss custody and access unless spousal support is part of it.

She’s also playing down her income saying that if she was to get another job she could only make about $35k. She made $5K last year from teaching yoga ($50 p/h) as a certified yoga instructor and she also has a knitted hat business where she sells baby hats for $20 a piece (She has sold 70 so far in the past 3 months with nothing reported to the CRA). She has told me she won’t teach yoga anymore as it “stresses” her out.

My plan for mediation:
Joint Custody and 50/50 – no backing down.
I will ask for 50/50 to begin after my son is 1 year old and as much access as I can between then and now
I will pay full CS and I imagine 80% of Section 7 given my income

My question:
For a 22 month relationship with a child, mysupportcalculator for SS is coming up with 6-18 years and a significant portion of my income, which seems ludicrous. I will definitely ask my ex to prove entitlement and have her income imputed to account for yoga as well as the hat business but......

How do I handle the SS aspect in mediation? I imagine the mediator (social worker, not lawyer) will just type the number in divorce mate and tell us the guideline amount. How should I respond?

Do I try to negate mediation discussion of spousal and retain a lawyer to work it out with her lawyer in advance? Should I in good conscience just offer her a settlement amount if she agrees to 50/50?

Thanks in advance!!
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Old 12-30-2013, 11:08 PM
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Do not concede to any discussion whatsoever of spousal support. Do not write the words "spousal support" on any documentation.

Read as many posts as you can on this forum about mediation. I personally think it's a waste of time. Others may disagree.

Your focus should be on your child and custody right now.

I repeat, DO NOT, concede in any way to SS.
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Old 12-30-2013, 11:20 PM
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So your actual live-in intimate relationship was about a year, and you were platonic roommates after the child was conceived and she moved out a month after the child was born?

I would say that you were never common-law at all, and there is absolutely no entitlement on her part to any spousal support. A common-law relationship is defined as having lived together for 3 years, or having a child together. At most, you were common-law for one month. SS is ridiculous under those circumstances. Hopefully the mediator realizes this.

The SS calculator gets that 6-18 duration range from out-dated assumptions that a woman cannot support herself at all while the child is of preschool age, and not completely while the child is in school. It has nothing to do with the nature or length of your relationship. It is also old-fashioned and completely ridiculous and you can shut it down by assuring her that you will pay your proportional share of any necessary daycare costs so she can work.

The SS calculator also gives a range of amounts (low mid high) based on some arcane determination of the difference between your incomes. She's going to leap on the high number, of course.

What you want to do is play to her greed. Point out how unlikely she is to get SS. Show her the numbers of CS you would definitely pay using the offset system because you are assuming 50-50, using your average of the last three years' income since yours is quite variable, and her EI for the mat leave year and then her normal 42k. I don't know that you should waste time, money or effort imputing a hat business income. Offer her a few grand to avoid court and see if she bites.

She has no entitlement to any money from your house. It's your house. Did she drop thousands on it in the way of renos or decorating?

And the breastfeeding argument. There is lots to search for about that on here. "You're a bad father for want him to take formula now and then?" Wrong! A child should bond with both parents, and she can pump if she thinks formula is all that horrible.

I would come to the mediation session prepared to negotiate though, as that's what mediators do. Your initial viewpoint should be joint custody, 50-50 access, offset CS with her full 42k income, and no SS. Then, make some concessions if necessary. No SS, as that's ridiculous and you really just don't want to go there, but a $2500 signing bonus. Drop to offset CS with her actual line 150 reported income. Drop to access being 75-25 in her favour for the first year while she breastfeeds, while you pay full table CS, but with a written plan to ramp it up to 50-50 and offset by 18 months. That sort of thing. You have to be able to live with the results, or call mediation a failure and take her to court (where she is likely to lose but it may cost you a lot of money).

The problem with mediation is that it's frequently about meeting in the middle. If you go in with fairness in mind as your starting point, and the mother comes in with a ludicrous position, what you will end up with is a position halfway between fair and ludicrous. And that's not fair.

I would use this prep time to do a lot of reading on here and asking questions, and start finding a lawyer. You'll need one at some point, and a lawyer will have the insight into the mediator and the opposing lawyer that we simply can't provide.

Last edited by Rioe; 12-30-2013 at 11:22 PM.
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Old 12-31-2013, 12:23 AM
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A couple of thoughts:

As others have said, SS is absurd in this situation. Don't even let those words get used. If your ex won't go to mediation if it's only about custody and access, tell her you want to discuss "custody, access and financial arrangements", and let her interpret that how she wants.

I'd also stop referring to this as a "22 month common law relationship". It sounds like you were dating/sleeping together and/or sharing a house for 21 of the 22 months. You didn't meet the criteria for a common-law relationship until the child was born, and then a month later she moved out. mysupportcalculator and DivorceMate are irrelevant in these circumstances.

Rioe has given good advice about showing her what CS would work out to (at your income level, it's pretty decent money), offering a "signing bonus" (disguised as a lump sum to "ease the transition"), and proposing a plan to move up to 50/50 gradually. If this flies, be prepared for her to have all sorts of excuses as to why she can't move to 50/50 when the time comes. It's important to have a strongly worded agreement with no wiggle room now. Have a lawyer in your back pocket and prepare for a fight in 18 months time.

Be sure you have a solid and feasible plan for child care, if you're planning to have 50% residency with a toddler in the next year and a half. If you don't have your name down on a waiting list for high-quality day care, do so now. (You could also use this as a sweetener by offering to pay the full shot for day care [rather than treat it as S7] to make it easier for her to transition back to work). Your line of work (sales) could be used against you, as it often involves unpredictable hours and lots of of overtime. You'll need to be able to counter the "stay at home mom" card.

You're obligated to support your child, but you have no obligation to support her. She's trying to use the child as an ATM, and that's disgraceful.
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Old 12-31-2013, 12:36 AM
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I would like to offer this:

I think the spousal support advice is bang on. But more importantly, if she was working and earning income, why are you even contemplating spousal? Did she give up employment, education, promotions, etc. during your short relationship?

Quote:
Does not want to give me 50/50 access to my son and is using breastfeeding as a way to hold him hostage at this point. “I can breastfeed until he’s 18 months and you're a bad father if you think he should be on formula” is her comment to me.
I want to offer you this: not every woman can pump regardless of how much milk they have. I would tread lightly on this particular issue and consider how arguing this point could be at the opportunity cost of having meaningful time with your baby. All that to say, if mom is breastfeeding there are many ways that you could bond and be with baby WHILE mom breastfeeds.

I would think at 6 months of age access could be greatly expanded as well, as that is typically when foods are introduced. In the interim, be creative in how you can spend time with baby in the early months. Don't miss out on EVERY opportunity you have to be with baby.

As for the common law issue I am of the opinion that the post above is incorrect. There is common law per the Financial Act and Common Law under the Family Act. Both are different and carry different weight. Unfortunately, per Rev Can/Financial Act you ARE commonlaw as soon as you have a baby and as soon as you reach one year of cohabitation. Only a separation of 90 days will dictate that you are actually separated. And the minute you move back in you are again common law. Lots of info on this all over the forum and other places.

But I'm getting side tracked... you seem reasonable and well spoken. You also have a good income. Don't get me wrong, I know paying more than you should bites the ass big time, but consider paying what you can WHEN you can NOW. Over a token perhaps as the post above suggests. Make an offer to settle without prejudice with a carrot in it. Maybe she will bite. Sounds like you have a little wiggle room right now. Maybe you can offer to put the carrot into an RESP in HER name and she can do as she pleases with the money so it doesn't look like a slap in the face.

Remember, "threatening legal action" is really not threatening - its the legal way to settle disputes between individuals. However, many individuals see it as a threat none the less. If you can afford to throw her a bone, why not? It has to be paid to someone, and it is likely better in her hands even if she chooses to buy lulu and tiffany with it. The lawyers are doing the same lol. And again, I don't mean this with any slight. We pay through the nose too and do without in many other aspects of life. It is what it is, as I say it.

Just consider that a legal battle also comes hand in hand with a whole lot of BS. It is hard to start or sustain other relationships and to just get on with life, work, family, etc. when this shit is constantly looming over you. If I could do it over again, I might have given more carrots to settle things. It doesn't sound like you have any other children at the moment which is really a god send. In our particular situation, there are no more carrots to give as the other children outweigh the carrots we can currently offer.

All the best to you and your little one.
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Old 12-31-2013, 12:47 AM
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Forgot to ask - did you have a paternity test?
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Old 12-31-2013, 10:00 AM
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Quote:
Originally Posted by arabian View Post
Forgot to ask - did you have a paternity test?
I agree ^^^

SS is absurd. While I do not know if having a child will grandfather in prior months of the relationship (I don't think it does given how the legislation is worded), the fact is you were dating. Your relationship was broken off in many instances and you only co-habituated with the child for a month.

For mediation, I would agree to go but when the topic of SS arises, simply state 1) your relationship prior to the birth of the child does not meet the test for a common law relationship in the legislation and that your post birth relationship lasted 1 month and 2) she further doesn't meet the test for entitlement. That you are willing to pay CS and will agree to work on a progressive parenting plan that increases your parenting time to 50/50, but that SS is a non-starter as she simply isn't entitled.

For the parenting plan, work on set dates, not milestones. Should you go with milestones, your ex can play down things and say the child isn't ready blah blah blah. Agree to X time for 6 months (3 times a week for 2 hours). Then post 6 months, when they aren't nursing every 2 hours, get 6 hours once a week and 2 hours twice a week. At one year - one afternoon and one overnight and one evening. At 18 months, 2 overnights a week. At 2 years, you should be doing the 223 or 225 or week on/week off rotation. Work in holidays as well, summer, march break, fathers day/mothers day etc.

Your ex is likely seeing $$ signs and is being fed what she wants to hear from her group of hens. She is wrong. The only way she gets SS is if you agree. And the only way you agree is if you get something you want in return (like 50/50 without a fight), and then you put caps on the amount and duration (2 years MAX - which is WAY more than she is entitled to....but if it gets you what you want without a court battle, it may be worth sucking up - doing the cost/benefit test).
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Old 12-31-2013, 10:39 AM
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I would get some legal advice on the SS. I am so afraid that if you concede whatsoever to SS you are setting yourself up for it being a) accepted and b) therefore subject to review in the future.

She wants you at the table to get those magic words "spousal support" on the paperwork. She is trying to establish a fact. What better way to do it than to agree to mediation only when it is part of the agenda? Don't fall for this. If you decide to go to mediation insist that you agree beforehand on the agenda. This agenda should be writing with both parties agreeing to adhere to the agenda with no deviation.

With that said, be prepared for her to file a Notice of Motion for Interim Spousal Support. You will have to have clear, concise documentation to support your argument that you only lived together briefly. Focus on the separation date as any and all future litigation will refer to that date.

Very smart for you to start paying CS.

HammerDad has extremely important advice about the parenting plan. If you follow this advice I suspect it will save you much grief in the future as it would nullify a status quo situation that judges so often rule on.
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Old 12-31-2013, 10:48 AM
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Quote:
Originally Posted by arabian View Post
Forgot to ask - did you have a paternity test?
Ahahahahaha.....As Tayken will say "BAM"

As I was reading the post by the OP, that was the first thing that crossed my mind. The OP seems to have been the victim of a "Rebound" i.e. "she moved in the same month her divorce went through", and then she "will leave for days at a time, and then come back"

Quote:
Your ex is likely seeing $$ signs and is being fed what she wants to hear from her group of hens.
That is always the case isn't it? She is earning 42k/yr minus the Yoga income, and probably has something from her divorce (?), but still wants to dip her hands into this latest pot of gold. Interesting to see how the GF's Mom is all up in this business too saying she is entitled to SS for 5yrs and all that malarky. I guess she wants to see someone pay dearly for what happened to her daughter previously, and they are willing to go as far as getting pregnant to achieve that.

Quote:
My ex will not go through mediation to only discuss custody and access unless spousal support is part of it
The mediator (who might be a family lawyer, psychologist, social worker etc) will have their own agenda that they will follow for your mediation. However, you will both get a form that will list topics you want to discuss. If she is already saying she won't talk unless SS is on the list, then you are in for the long haul...some of us have been there.

Your best cause of action (that worked for me and some), will be to go file papers at the court house i.e. be the Applicant and show that you aren't got time for any games/BS. Watch how that wakes her up so fast

Quote:
After moving in, things started taking a turn for the worse – we broke up multiple times (initiated by her) and she moved out on three occasions (for a few days). She became pregnant in December 2012 and moved out again for a week
This thread needs to be made into a STICKY in the end. This has to act as a wake up call and an eye opener to those that might be finding themselves entering into a rebound situation, or just getting caught up with infatuation.

This thread thus far has confirmed a couple of things mentioned on this forum in the past:

1. "Don't stick your wand into crazy"

2. "The person you think you knew so well, can turn into a $$$$$ grabbing monster in the end"
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Old 12-31-2013, 12:35 PM
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Sorry haven't read everyone's posts yet, but a lot of them.
Having been a parent who went through this this is my opinion.

File First:
File first and become the applicant. The longer you wait the more of an uphill battle you will face. By not waiting you show the courts you want to be involved from day one, not just after the child turns 1 or 2 years old.
And I would file where you live not where she lives. You both decided that the child would be born in _____ and not (where her mother lives now)

Spousal Support:
With regards to SS it's a non issue. Again caselaw to support this, with regards to entitlement
See: Burns v. Krebss, 2013 ONCJ 76 (CanLII),
They (the other side can take you to court but they won't win.)
And you can do this yourself and ask for costs against them
See: Burns v. Krebss, 2013 ONCJ 226 (CanLII),

With Child support:
I would approach it like this. Pay only the offset amount, your position is you should be seeing the child 50% of the time and so until there is an order stating otherwise thats is your position and that is what you are paying. "Mom" is simply with holding access. And your filing in court to correct this.

Overnights:
Your child is 5+ month old, you should be having some overnights right now.
Search Google for "Orange County of California Parenting Guidelines" and read it.

With regards to breastfeeding:
It may be her preference to breastfeed, that's her choice.
When the child is with you it's your choice. If she wants to pump and provide milk great if not there is an alternative.

I will post caselaw with regards to breastfeeding next. but it is my position that breastfeeding is absolutely secondary to benefit with bonding with both parents.

If a child won't breast feed, then Parents can choose to pump or go to formula
If a mother can't breastfeed then parents can choose formula
These are all choices and by law both parents have an equal say in these choices. Both parents have equal rights to custody and access.
By listening to her about breastfeeding you empower her.

At the end of the day, the child will benefit much more by spending equal amounts with both parents than by breastfeeding. Anyone who says differently isn't up on the literature. If the mother decides that she can't or won't pump that's her choice, but don't let that effect your relationship with your son.
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