spousal support and child support

[bryan]

I hope someone can give me some information. I have been living common law for 8 1/2 years. I have a daughter from a previous relationship. I am currently paying child support to my first wife in the amount of $560/month.
My common law relationship is breaking up. She wants spousal supprt from me. I have gone to a lawyer and sent an offer to her. Based on both of our incomes, i have offered her $370/month for a four year period. My lawyer says there is no way she will get more than 4 years as she if fully capable of supporting herself and she says she is entitled to 6 to 8 years. I am worried that i will have to pay for this for a long time. does anyone know. Also, my daughter may be coming to live with me instead of staying with her mother. Does that or can it affect any support i may have to give the common law.
Any information would be helpful as i dont know which lawyers to believe.

[FL_Needs_To_Change]

All SS cases are handled on a case by case base.
Generally CS gets priority, and SS is based on need and means after that fact.

I would think that if the child comes to live with you, then your expenses may increase, even though your physical out of pocket costs have stopped. Think about it, the driving them every where, the many functions for school, the fund raisers, etc.

If the ex was able to be fully self supportive then I would venture to say that a judge would not order the max entitlement. Just because a lawyer says she is entitled does not guarantee the ruling.
I would offer what you feel you are comfortable with as you know her best and would have a solid understanding as to her need and obviously your means.

Personally I’d take the wait and see route, and present the facts that she was and is capable. I’d offer my financials and explain her abilities and lack of need, and your diminished ability once the child comes to live with you.

Remember judges rarely rule on assumptions, and would not automatically say that your cost may possibly increase should the child live with you. They would only see the obvious, being no more CS payments; you’d have to clearly point out the changes. And ride strongly on the fact that the ex did not give anything up for the relationship to warrant any lengthy entitlement to SS. Coupled with her ability to “fully” support herself goes a very long way. Particularly since you have a child of another relationship to consider. You may want to point out potential hardships should SS be awarded, and what you would have to sacrifice by way of your ability to provide for the child. Courts are all about the children, you need to make that your primary focus. It’ll go along way towards your character and her lack of compassion for the presence of the child in the scenario, even though it is not hers and shows she’s all about herself.

[FL_Needs_To_Change]

http://www.canlii.org/en/ab/abpc/doc...06abpc230.html

This case is similar to yours, in that she was self supportive before and after the relationship, no children are involved, and she did not sacrifice anything by way of education etc when entering into or leaving the relationship. This is an Alberta case, so the laws may differ from province to province. One paragraph of interest,

15] The respondent takes the position that as the parties had no children together this is a significant factor in determining the obligation for support, as the applicant did not need to forego a career or employment opportunities as a result of taking on the role of mother. The respondent further argues that the applicant’s employment remained of the same type and duration during their relationship as it was prior to their relationship. She was not required to forego any potential advantage in the employment field because of their relationship. The respondent maintains that the applicant is presently able to maintain the same type and duration of employment now as she experienced before and during their relationship. The handwritten letter supplied by a treating physician, while unclear, may support the applicant’s position that she is now not presently employable. The evidence, however, establishes that her employment has always been sporadic in nature.

[FL_Needs_To_Change]

[19] I am satisfied that an order should be made under Alberta law. Accordingly it is not necessary for me to reference the law in British Columbia. I take into account the factors set out in ss. 58 and 60 of the Family Law Act. I make special note that the relationship was relatively short in duration, there are no children of the relationship, and that there were no significant changes in the applicant’s employment profile during the relationship compared to prior to the relationship. She did not forego any educational or employment advancement as a result of the relationship. I also recognize the objective of promoting the economic self-sufficiency of the applicant within a reasonable time, within the context of her historical work record, and health issues. Accordingly, the respondent’s responsibility will be on the lower end of the scale, both in duration and amount. I am satisfied, however, that there was some economic disadvantage experienced by the applicant as a result of the breakdown of this relationship.

[bryan]

Thank you!! That gives me a great deal of information. She keeps threatening me that i will need to pay for more years, but from the sounds of it she will only get the four years as I feel that that is more than fair.

That is what i offered. I dont know how i am supposed to be able to live already having to pay 560 a month in child support and 370 to her, when she is fully capable of supporting herself. She sacrificed nothing of her time, or her job because of our relationship. If anything i asked her to get a better paying job with more hours so we could live better and she never did, but i know i cant get away without giving her something.

Again, your efforts are very appreciated FL..
thanks
bryan

[Fair4All]

I would question her entitlement to SS in the first place. My understanding is that a person is entitled to SS if he/she made a sacrifice during the relationship - usually related to having chosen to stay home to look after a child. In that case, even if the person didn't give up a high-paying career, he/she has been out of the workforce and needs time and assistance in getting his/her skills updated.

In your situation, there were no children. If she's been working for the duration of the relationship, why would she need spousal support?

Once the question of entitlement is addressed, then duration and amount are decided. If there is a shorter duration, the recipient may argue that the amount should be higher.

I understand the Spousal Support Advisory Guidelines are gaining more support by Ontario judges. I would ask your lawyer to run the "no children" formula and see what comes up... usually the duration will be 6 mos to 1 year per year of relationship. The amount will depend on your net incomes.

Good luck!

[bryan]

My lawyer and I already did that. The low number was 318 and the med was 370 and the hight was around 400. I offered the medium number for four years. Is there any precedent for no entitlement though. I just assumed that she would definitely be able to get support because i make more money than her. She has not received the offer yet, but i know she is going to put up a fuss about the amount of years. I dont want to go to court, there is not enough money to fight about and i dont want to pay legal fees. We currently own a home together. I am worried that she will not agree to sell the house unless she gets more money from me.

[dadtotheend]

She didn't give up anything in the relationship and is capable of supporting herself. Give her nothing.

[today]

I think fair4all has it right. Not making any offer at all and letting the other party prove thier entltlement may be best. Why just offer it upfront, Usually an offer is just a starting point in a negotiation, meaning your offer may only be the starting point for you.

It is a common law relationship with no children, you have a very good chance of avoiding to pay in my opinion.

Best to research as much case law as you can of recent cases if you can.

Good luck, my own personal opinion given the circumstances, no children etc. I would not want to pay any SS. Just a personal opinion.

[FL_Needs_To_Change]

The primary issues are
a) no children
b) no disadvantage coming into the relationship & no disadvantage due to its break down
c) CL is NOTHING like being married, as CL the only "entitlement" is CS in the event there are children.

Asset splitting does not happen in CL like many think. In CL you keep what you came in with, you get nothing else unless you can prove you bought it or some how contributed to its purchase.

This person did not give up anything for the relationship, nor is she at a disadvantage because of the breakdown of the same. SS is intended as a means to provide support so that the individual can get back on their feet and become self supportive. She IS self support and always was, there is no issue on this here.

I tend to agree with fair4all, there is no real reason for the SS other than you make more than she does and this in and of itself does not prove entitlement or "need". The big word here is "need" followed by means.

They first decide "need", which I feel there is none, then and only then, do they look at the income differences between the parties to determine "means".

I'd leave it as is.
Let her prove need. I think this alone will be a tough go, even if you go to court. I understand your desire not to incur legal costs, but this seems to be very B & W and you could easily represent yourself in court should it go that far. Court really is only a big conversation. She offers, you reply to the offer. She offers her why and you counter with your why not. I judge presides to make sure all protocols are followed and if one party proves entitlement, then they move on to the conclusion, IE how much and how long. And again the issue of "need" is the primary factor for how long and how much. If she is able to work and able to get a better job than the one she has based on her skills, then the need is less, so to is the need for any lengthy time frame. The duration is dictated based on how long she would need to upgrade her skills, and apply those skills to get that good job. But she's already at that point, so in my opinion she has no need to upgrade skills, no need to allow for the time to look for employment, no need for getting back on her feet.
Sorry this was a longer reply then I thought.

[Fair4All]

So my understanding is... she's threatening to not agree to selling the home unless she gets SS. It sounds like neither one of you wants to go to court (or don't want to pay to go to court). In addition, you may have a child moving into the home with you.

My suggestion: offer her nothing. Stay in the home. Let her take you to court. Delay. She'll have to support herself somehow until the court date comes up. Then when the day comes and she has to show her "need" for SS you can turn around and show that she was able to support herself. In the meantime, you need the home for your daughter.

Don't assume you have to give her something to get her off your back.

[bryan]

Is there any cases where ss was denied due to no entitlement. My understanding is that courts always award it as that is the way it works. I agree that i dont feel she is entitled to any support from me but i dont know of any instances where ss was not granted.

[Fair4All]

In searching the Canlii.org website, I found a few decisions that may be relevant. The first link is to a decision that cites all sorts of previous decisions, so it may prove to be helpful:
http://www.canlii.org/eliisa/highlig...anlii8152.html
The next two decisions are referenced in the one above:
http://www.canlii.org/eliisa/highlig...anlii4601.html
http://www.canlii.org/eliisa/highlig...anlii6989.html
If for some reason the links don't work, the cases are Bray-Long v Long (NS, 2000), Colling v Colling (NS, 1992) and Urquhart v Urquhart (BC, 1998).

[bryan]

I have another question. We have been living in the same house for many months, many discussions about how the relationship is over. I sent her a formal email in September stating our relationship was over and that she should see a lawyer. She will not agree to anything. In the meantime, i have been paying the mortgage and all other utilities for the last few month(which seem many). Can i claim that as spousal support already paid. Or can i tell her to start paying half now, and how do i or can i enforce that.

[Fair4All]

I would first take an inventory of assets and their value at time of separation - this would most definitely include the house, cars, RRSP, etc. Then determine the debts - mortgage, car loans, etc. I would think the court would want to "award" her half of the increase in value of any of the assets. For example, if the house value increased by $50,000 in the time you were living together, then she may be entitled to $25,000. She may be delaying, hoping that when an agreement is drawn up, the house value has climbed even further. Then she may claim that the separation occurred after September (as you continued to live together) and that she should be entitled to more of the house's value.

I don't think the court looks at payment of utilities, etc. to keep the house going as you'd have to make these payments even if she weren't living in the house. And asking her to pay half could be shown as your not wanting her to leave.

If I were you I'd definitely stay in the house - possession is 99% of the law. But ensure you're in separate bedrooms and that you have witnesses who can attest that you ceased to be a couple in September.

I don't have experience with common-law cases, so maybe someone who does can add more suggestions.

Good luck.