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Ending Common Law with kids

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  • Ending Common Law with kids


    Two years ago my CL spouse move into another bedroom with the intent of moving out. Since then she has had other relationships but has not left. She was working part time 20 hr/wk but quite due to conflicts with other employees. She has substance abuse problems and has recently been charged with DUI.

    We have two kids in primary school. They attend day care allowing their mother to work or study. I do all the home work, 90% of the extra-cirricular activites and get the kids to school on time. She does half of the cooking, cleaning, shopping etc. I will be doing the shopping now she can't drive. She has enrolled in a night course which runs 4 nights a week plus Saturday. At this point I'm the primary care giver.

    I'd like her to have access to the kids but not 50%. This would not be good for their education and would limit other activities. She does not interact with them more than 10 minutes a day, doesn't say Hi or Bye when they come and go. Further she smokes in the garage and basement but may expose them to this directly if they lived in an appartment.

    I paid for the house and all its up keep but registered it in both our names(seemed the right thing to do at the time). I want her to leave but want to stay in the house. I could take a loan and buy her out. This would give her $250k. Would this limit any spousal support claims? She has not given up a career to raise kids. After moving in together she went to University while I paid the bills. Since having kids she has taken numerous night school course or worked part-time evenings and weekends while I looked after the kids. She's had ample opportunity to develop skills or career but it hasn't worked out.

    I'd appreciate any advice on expectations and processes.


  • #2
    Ending Common Law

    Hi Toledo,

    I don't have the experience to comment on any custody or access issues
    in your situation, I would like to think under all of the circumstances that
    you could have or win the majority of parenting time, but other members
    may have better idea.

    Regarding the house split of equity,it depends on what jurisdiction you
    live. My Common Law relationship also had both people on title, but
    the law where i reside( B.C ) allows for uneven splits in equity based
    on proving your contribution. I was awarded the majority based on
    documentation. I understand Ontario prefers not to give uneven splits
    of equity.

    Regarding SS, and sorry for the abruptness, but my experience(s) in court
    for SS is this.

    a) Any equity she gets from the home, no, your still on the hook fully for
    b) you partook in a spousal relationship of some duration that included
    owning a home together and have children together
    c) you supported her in gerneral, through school and etc....
    d) you new this person for some time and chose her to be the mother of
    your children.

    As I write these points, i refer to documents, not just an opinion.

    Try to make a deal on SS, in my opinion you are are the hook for this,
    and as wrong as it is, it is your problem and she is unable to hold down
    a job, it is your problem that she may have a drinking issue, i am not
    saying I agree, but thats my experience in family law

    Make a deal on SS, whether it be a lump sum, or a Final Order with a
    definite ending date, or the SS obligation could go on and on indefiniatly.

    Best of Luck, The Raven


    • #3
      I disagree with a couple of points.

      First, you are common law, not married. She would have to prove entitlement to get spousal support, and you simply would show that she attended university/etc on your dime. (Get the records of the payments/etc ASAP and get them out of the house).

      She benefited by being able to attend university, study, etc throughout your relationship, ergo she doesn't meet the entitlement check. She gave up nothing for the relationship by the sounds of it.

      Second, if you want to keep the house, you have to buy her out. She can make a claim against it, so your best bet is to do up a fair equalization and call it a day. Remember, you have to take into account ALL joint assets/debts when figuring it out, NOT just the house.

      And don't do a lump sum spousal if you can avoid it. Take the lump sum, stick it in a separate account and dole it out over a set period of time. (Pay NOTHING with a court order on that front).

      The biggest reason is that a lump sum gains you NOTHING in tax breaks....a court order spousal amount paid monthly is tax deductable for you.


      • #4
        Toledo, what province do you live in?

        As NBDad pointed out, you were CL, not married. Therefore, SS isn't automatic. She would need to prove that she suffered career wise for the betterment of the household.

        In my province, assets are not split when in a CL relationship. Basically your debt/assets are yours and her debt/assets are hers. You stated that the house is in both your names; can you prove that she hasn't contributed to the payments? Even so, her name is on the deed, so she'll likely get some stake in the house. Has she contributed to any of the other bills? If so, she may claim unjust enrichment, which enabled you to pay all the mortgage.

        In hindsight, you should of kept her name off the mortgage. I live CL and we keep our assets, debt and bills clearly separated. In the event of a separation, this should make life a little easier for any disputes.

        As for 50/50 custody (or not), what does she want? Based on what you say, it doesn't sound like she's too interested in having the kids 50% of the time.


        • #5

          I live in Ontario. The house is the only major joint asset.

          I have paid for > 90% of all common expenses including mortgage, cars, property tax, utilities, rennovations and on. The mortgage I have paid explicitly. She has paid many utilitiess but I write her monthly cheques to cover this. Simply looking at her T4 it is obvious she could not contribute significantly.

          I put her name on the deed as her security as we weren't married. I'd be happy with a 66/33 split on the house and no SS. I could buy the house back over time but that won't get me any tax break. Time to get some legal advice.

          She says she wants 50% custody of the kids but it would be ugly. She was fall down drunk recently and kids weren't impressed.



          • #6
            It's a "sticky" situation. Her name is on the deed, so your starting point will be 50/50 split in net equity. You can argue that you paid most expenses, but it's hard to say what will be the final outcome.

            As for SS, the onus is on her to prove entitlement.

            As for custody, use her substance abuse probelms as grounds for you to get more than 60%. Stick to what you can prove. The DUI is a start.


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