Advice on Spousal Support

[bushboar]

Here is my issue in a nutshell. I was in a relationship which ended 3 years ago from which I am the daddy of a beautiful 4 year old girl. The relationship lasted for a total of 2 years. Although contested, we lived in separate principle residence between April of 2003 and July of 2004 save for 4 months in the winter of 2003 that I lived at her place through the week and then at my own house on weekends. Emma was born June 12, 2004 and we moved in together sharing one principle residence July 1, 2004. We lived together until May 29, 2005 when due to irreconcilable differences we went our separate ways. So the actual cohabitation period was a little less than a year by my calculation, but if you take into account 4 months that I lived with her the previous winter, it could be looked at as 1.5 years together cohabitating. At the time of our breakup, she held the same position of employment which she had held prior to our relationship. She was making approximately $28,000 and I was making $33,000 at the time. When we broke up, I continued to pay the mortgage on the house which we owned collectively and promised that upon the sale of my own home, I would pay her $10,800 in a lump sum payment to "walk away." That $10,800 was to buy out her interest in the house which we collectively owned and that if sold at the time would have resulted in an $8000 loss as well as to get her on her feet with new accommodations. As of November 2005, she received the promised $10,800 cheque.

If I am correct, with such a small differential in pay, I would not have been required to pay spousal support as her income would have been very much equalized taking into account the $300 monthly child support payments, increased income tax returns and child tax benefits we received. Is this correct?

Secondly, she has now decided that 3 years later, now that my income has more than doubled, that she wants a piece of the pie and is after me for spousal support. Here is where this case gets interesting. 1 year and 3 months after our breakup, she left her $28,000 job and returned to school. Although she was never a dependent spouse while we were together she is now claiming (3 years later) to be a dependent spouse in need of support. Is there any chance that the courts will buy this? Or will they fault her for leaving her paid position?

[logicalvelocity]

If it was me, I would call the bluff and litigate. The claim is not strong, because need is greatest at the ending of the relationship. As demonstrated she survived and lived and supported herself. The choice to further her education after the fact is irrelevant.

[FL_Needs_To_Change]

I agree with LV, you have a strong case to show she is self supportive and has done so for 3 years.
Had she initiated the request for SS at the commencement of the separation then she would have a claim to SS no matter how long it took to "resolve". However, since she has waited longer then one year to "initiate" the request for SS, I feel she no longer is entitled by law.

Even if by some far fetched chance that she can convince a judge to consider the request, she would have to prove that she had need at the time of separation and that "need" continued throughout the 3 years.
Then she would have to show means on your part.
You are correct, had she initiated at the commencement, given the relatively equal incomes plus any CS would have shown that you had no means, and she did not have a great enough need.

Again I agree with LV call her bluff, the right to SS is not indefinite.
She cannot wake up one day and think that "now you earn enough" I'm going to ask for SS. It doesn't work like that. She supported herself for 3 years without SS not to mention she is furthering her education and employability in a greater earning position once she has returns to the work force. So her going back to school is good for you as it further demonstrates her ability to support herself .

Good luck

[paris]

I doubt that anyone would rule that you have to pay SS, but if your income has doubled, your CS will probably increase.

[wondering50]

The SS case sounds pretty iffy to me as well.

However, given your increase in salary there may be a case for increased CS. You do not mention your parenting arrangement so I am assuming that she is the custodial parent. Given the salary range you have quoted and using a straight table amount your CS might well be almost double the $300 figure you mention. I am surprised that she has not approached you for that.

Maybe it is also coming?

[Fair4All]

Were you and your ex ever married? Or were you living common-law? I believe the amount of time that passes following separation in which someone can apply for SS differs depending on the situation. In the case of common-law (from doing some searches on-line), I think the general period of time is within one year of separation.

[bushboar]

We were living common law. Lived together from December to April 2003 and then again from July 1, 2004 to May 28, 2005, so never spent even a year continuously cohabitating. As soon as I started at my new job I immediately voluntarily raised the child support amount to $500 based upon my expected earnings of $50,000. Now paying $719/mth based upon my current income, once again voluntarily. This brings up another question. Is CS based upon an average of last 3 years incomes, or is it solely based on current income. How does FRO generate the correct figure?

[bushboar]

Fair4All - Can you point me in the direction of anything you found regarding this one year limit? A kind thank you to everyone who has replied to this thread. As I am sure you can well imagine, I have been losing a lot of sleep over this and have been stressed considerably. Good weight loss program mind you!

[FL_Needs_To_Change]

http://www.ottawadivorce.com/forum/f3/advice-3316/

This thread also concerns the time limit to claim SS.
I quoted a government site in this one.
I cannot seem to find the same site, but I'm sure if you google search the content you'll easily find it too.

Regards

[Fair4All]

I had done an Internet search as well and found the Canadian Bar Association (BC Branch) site had this: Spousal Support

There are differences between provinces as I found in this document (also from BC): http://www.ag.gov.bc.ca/legislation/...efinitions.pdf