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Old 04-24-2010, 12:30 AM
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Default Common law & Spousal support

Hi there,

Just trying to find out the definition of common law as it relates to the number of years that someone is considered living common law, i.e. 1 year or 3 years. My lawyer has indicated 12 consecutive months is considered a common law relationship, and therefore, do I have to continue spousal support payments?

Thanks to anyone who can answer this seemingly difficult question.
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Old 04-24-2010, 06:47 AM
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Maybe your lawyer specializes in real estate?

For the Federal goverment, strictly for the purposes of things like pension benefits, common law marriage is considered to be one year. Please be aware, the Federal goverment does not have jurisdiction over who is "married", this is provincial law, and this federal definition is just for the purposes of taxes and benefits.

Marriage is provincial jurisdiction and is governed in Ontario by the Family Law Act. In provincial law, there is no such thing as "common law marriage" although the term is still commonly used because people are pretty clear what they mean by it, and there is no specific term for "common law" in the Family Law Act.

The Family Law Act only refers to a "spouse". Here is where it gets tricky, and they did this on purpose. For most of the Act, a "spouse" is defined in section 1.1:
Quote:
1. (1) In this Act,....
“spouse” means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1); 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2); 2006, c. 19, Sched. C, s. 1 (1, 2, 4).
This means that "spouse" requires that you have actually gone out and gotten a marriage licence (this is spelled out in another act).

Later on when it talks about anything, like Matrimonial Home or Family Property, the above definition is in play. When you come to the section on Support, it adds to the definition:
Quote:
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); 2009, c. 11, s. 30.
For the purposes of support payments, a "spouse" is someone from the original definition, and also a spouse, just for this section, is someone who has cohabitated for 3 years, or they have been raising a child together "in a relationship of some permanence" (meaning there was concious intent to have a LTR, regardless of how it worked out.)

I've tried to be clear and cite the legislation because you have received bad advice from a lawyer, or misunderstood it, or he misunderstood your question.
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