common law question

[knight0369]

My wife and I separated in august 2008 (still working on getting the divorce done)
She moved in with a guy in 2008 and has been with him since....because we are not actually divorced yet would she be considered common law with this guy she's been living with for over 4 years (in ontario)?

[involveddad75]

Interesting, I think that being "seperated" intitles you to file as a "single" parent, as such "common-law" would apply after 3 years or after having a child with the new partner, if there isn't caselaw I don't think it would be hard arguement to make.
You can't be married to two people, but common-law is not marrage.

[Berner_Faith]

Yes she can be common law... my partner is not officially divorced, but we are considered common law and have been living as such for 2 years now. Common law in Ontario applies when one has been living with another for a period of 12 months, not three years.

[Conciliation]

Common-Law

Family Law Act. S 29

“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.

[Berner_Faith]

Canada Revenue Agency states...

Common-law partner
This applies to a person who is not your spouse, with whom you are living in a conjugal relationship, and to whom at least one of the following situations applies. He or she:
a) has been living with you in a conjugal relationship for at least 12 continuous months;
b) is the parent of your child by birth or adoption; or
c) has custody and control of your child (or had custody and control immediately before the child turned 19 years of age) and your child is wholly dependent on that person for support.

OP never specified what exactly this is for. Being common law has little weight even if they are still married. For SS purposes it could be argued that after one year of living together they are considered common law and the other side could argue they are not because of the Family Law rules... really depends on where the OP was going with this.

[involveddad75]

Canada Revenue Agency states...

Common-law partner
This applies to a person who is not your spouse, with whom you are living in a conjugal relationship, and to whom at least one of the following situations applies. He or she:
a) has been living with you in a conjugal relationship for at least 12 continuous months;
b) is the parent of your child by birth or adoption; or
c) has custody and control of your child (or had custody and control immediately before the child turned 19 years of age) and your child is wholly dependent on that person for support.

OP never specified what exactly this is for. Being common law has little weight even if they are still married. For SS purposes it could be argued that after one year of living together they are considered common law and the other side could argue they are not because of the Family Law rules... really depends on where the OP was going with this.

Ok so I now have a question.
My order states the following:
[58] The parties shall cooperate in relation to the filing of income tax returns such that each shall benefit by claiming one child as dependent upon them given the sharing of time and in relation to daycare costs and expense. Should some other method of filing be deemed more feasible and of mutual financial advantage, the parties may file accordingly.
So given that I and my ex had two children we each benefit from the spousal equivalent.

So if my current gf who has two children, and earns less than me moves in. Then in a year we have to file as a couple? Does this then mean that I can't claim one of my (don't like the term my I prefer our [mine and my ex's]) children as a spousal equivalent?
My girl friend also claims one of her children as a spousal equivalent. If we have to then file as a couple do we both lose this benefit?

[Conciliation]

Agreed....depends on the issue. FLA or CRA.

[red6419]

it depends on the jurisdiction - Federal or provincial.... the Federal Government considers you common-law after 12 months and Ontario considers you common-law after 3 years.

[Conciliation]

True...different Acts govern provinces. In Ontario is 3 years. However, the only Federal Act governing Family Law is the Divorce Act.....only applies to married spouses. However CRA and tax issues are different and the 12 months consideration for common-law spouses applies.

I understand from the thread that the issue is a CRA/tax issues, so agree 12 month definition by CRA would seem to apply.

[keers123]

Guidance

Hello,

I am going through a very exhausting common-law separation of 18 years. We have an 11 year old daughter together. My ex is an addict to alcohol/drugs so "rational" "normal" communication/situations do not apply. We have a house together but his name is not on title, it is in my name and my fathers. My ex contributed to this home financially so I would never argue the fact that he is entitled to half or half of contents. When house was purchased my father put $20000 down and he put $5000. I worked and Paid all expenses, utilities and he paid mortgage until a year after our daughter was born. In 2003we decided I would help him with his business. He had his own business which in 2005 we were told to incorporate and accountant/lawyer told us to put both of us as directors and 50/50 shareholders. He went bankrupt last Sept and since I'm listed as director still on the company I am responsible for all debt.Back on July 15 2011 the "official" separation happened. I had to have the police come to remove him from the house. He had left us for two weeks with no communication and when he returned was extremely intoxicated and uttering threats. He scared me but most importantly he frightened our Daughter. We have three vehicles that were used for his business that are all in my name. When the police came (and his parents) to take him away from the house they tried to take the vehicle he drives as well. I explained to police that vehicle is in my name and he is an alcoholic if something happens while he is driving it affects me. They agreed. I said please transfer it into your name and you may take the vehicle. It never happened instead he had a friend cosign so he could get another truck. He recognizes he has an addiction but is not seeking help. Today I am with no child support. I received $400 last summer from which my brother worked with my ex for free so he would give me some child support and in November another $400 but this time after giving it to me he assaulted me while I was driving him home after having him visit with our daughter. We nearly had an accident and my daughter was in the back screaming. He refused to sign a separation agreement I had prepared that states I will waive rights to child support if he agrees to give me sole custody. Luckily he has been agreeable to my requests that he has supervised visits with her only. We have asked him to be sober during these visits but not once has this happened. I would have got a lawyer but my financial situation does not permit 3 vehicles in my name amounting to $2300mnth mortgage $2500/mnth all bills, $10000 in over due taxes, repairs to house he left damaged, child expenses etc. I have had to borrow 4000/mnth from family to survive. I do not qualify for Legal Aid because my income is $48000. However I am an independent sales rep that works on commission with no expenses covered (I am responsible for writing them off at end of year) Here is where it is getting more difficult. We are trying to sell house he has signed both times in agreement but now its up for renewal and he is refusing to sign and said he is leining house (remember I have not EVER said we are not splitting any assests fairly). I have given him all his clothes , trailer, tools, computer, cabinets in garage but asked the main furniture stay in house till it sells then he can take it all.. too exhausted to fight. My parents surprised us with a trip to Disney this March 20th and I was told he has to sign papers. He signed passport, a letter of consent I prepared and I got it. Then I was told it has to be notarized. I contacted a lawyer near him paid $113 signed but now he is refusing to sign saying he will contact border charge me with kidnapping. I know this is his attempt at control/intimidation but he is only hurting our daughter. I am still planning to go with original letter that is not notarized (I am told there is no way legally I can get a court order in time). How is one to deal with a abusive addict I cannot find answers anywhere. Help