Does Ex Need Lawyer to Obtain Entitlement to my Pension in Common Law Separation

[cyanaura]

Main question is basically in the title. I'd also like to know if there's any difference in terms of her entitlement to my work pension and my cpp contributions over the years...

If she does file a claim can I in response seek:

Half of outstanding line of credit in my name?
Half of our son's braces which I paid for?
At least four months child support for our two kids (14 and 11) September to December 2008 when I had them virtually full-time before taking sick. We now share them about 50/50.
Rent she didn't pay because she made a unilateral decision to return to school in fall ’07 despite my insistence we couldn’t afford it.
Among other things...

Finally, I made a purchase of some land and a vehicle this year (both on credit). Does she possibly have any claim to them?

She told me she was moving out at the end of July 2008. I took the kids on a two week vacation immediately after. She officiallly moved out September 1, 2008. We were together 6 years approx. from Sept. 2002 - Sept. 2008.

Is my best bet to shell out for a lawyer in advance or wait to see what she does? Is there a timeline on such things?

Thanks to all in advance for your advice.

[cyanaura]

btw, i'm in nova scotia...

[SNAFU]

I'm in Ontario and am unfamiliar with the Law in Nova Scotia or the status of Common Law relations.

What I can tell you that the division of pension for the Public Service is covered under the Pension Division Benefits Act (PBDA). Not sure of other types of pensions except that, in Ontario it is considered part of Property Division. The HR people will do an approximation only if they have an agreement or court order. Pension doesn't necessarily have to be "divided" if you settle on a lump some or other form of "Equalization".

The Child Support is different from Property Division in that, if you cannot agree on an amount, you will need to go to court to obtain a court order.

If I were you I would probably call around and speak to some lawyers over the phone. Ask them your questions and see how they respond. Put a checkmark next to the ones that you liked and then go pay $100 for an initial consultation (the process is especially confusing at the beginning). Take it from there.

[standing on the sidelines]

I am thinking that your claim for child support in 2008 is not going to fly, you should have done something right away with that. The half of the sons braces is something that you are probably going to have to eat also. If the line of credit is in your name then it is your bill. Sorry but the rent becasue she went back to school is not gonna happen either.

I am thinking that the land and vehicle you bought on credit this year are totally yours because you have already separated. I am not certain on that.

I wish you would have found this site sooner because the people here have a wealth of information and personal experience. One of the questions that need to be answered is: is there a child custody or separation agreement right now?? As for your question on timelines, when it comes to certain things the faster they are handled the better.

[cyanaura]

so she would have to do it through a lawyer? how much time under a common law situation does she have to work with? and the pension? and she's entitled to both the work pension and ccp amounts, even though they're 'in my name'?

custody is not a issue. my son more or less lives with me. my daughter spends about 7 nights a month at my place and comes over every day on the bus after school most days staying until after supper. so i actually collect the CTB for both although that may change. she's almost 12 and he's almost 15 so we've basically let them land where they're most comfortable.

i might have dealt with all of this sooner but had a stroke at the end of december.... i appreciate your comments... please reply if you can... better late than never, as they say...

[standing on the sidelines]

i am thinking that she may not be entitled to your pensions but she may be entitled to spousal support

[cyanaura]

why spousal support? she has a full-time job... makes almost as much as i do and pays half the rent... i don't get it.

[standing on the sidelines]

why spousal support? she has a full-time job... makes almost as much as i do and pays half the rent... i don't get it.

I never said that you would only that you may. Remember we only go on what you tell us. Considering she moved out in 2008 i take it she is paying half the rent with a roomate in her own place? Your first post said that she went back to school in 2007, you did not mention that she has since finished and found fulltime work.

With the fulltime work how far behind you in money is she? The courts will base everything on the financial disclosure that each of you have to provide and then go from there.

By the way, I am a woman and I never went for SS when my marriage ended. I wanted a clean break. My lawyer wanted me to but I refused.

[cyanaura]

she had to drop out... like i said, our funds were limited. she's now working full time and living in subsidized co-op housing. i'm still not sure if i know the answer to my original question, though: does she have to apply for her 'share' of my pension through a lawyer? does she have a limited amount of time to do so?

[FL_Needs_To_Change]

Family Law Toronto :: Common Law:: www.familylawtoronto.com
This may help explain CL rights it references all provinces

[cyanaura]

thanks for that but it didnt really help. does anyone know:


in a common law separation:

does one have to apply for their 'share' of my pension through a lawyer? does onehave a limited amount of time to do so?

[standing on the sidelines]

CONSTRUCTIVE TRUST
A constructive trust does not require the court to find evidence of a common intention to share the property. This distinguishes it from a resulting trust. Basically, a constructive trust is a remedy that is imposed when the court feels that one party would be unjustly enriched at the expense of the other party if the other party was not given some degree of ownerhsip in an asset.

In order for a cosntructive trust to be found, there has to be an unjust enrichment to the party who owns the property, a related deprivation to the party making the trust claim and no legal reason (e.g., a contract or a gift) to explain the situation.

A constructive trust can be used to establish an interest in savings. In the Ontario case of Trotter v Trotter, the woman stayed at home babysitting the children and cared for her spouse and the home. The woman claimed that she should be entitled to a share of the man’s assets including his pension, his R.R.S.P. and his company. She argued that her contributions allowed the man to save money on childcare and spend more time at work, thus increasing the value of his pension and his savings. The man argued that the spouse had been compensated for her efforts because he had paid for her shelter, food and clothing. The court held that the woman’s housekeeping and childcare duties were valuable benefits that entitled her to share in the husband’s savings, his R.R.S.P’s but not his pension, because the connection was not direct enough.

Still, where the connection between the services provided and the pension can be made (as, for example, where providing child care allowed a unionized worker to work substantial overtime thereby increasing his pension) then a constructive trust may be created.


i am thinking that she will need a lawyer. As for time frame, I am not sure

[cyanaura]

thanks!! that more or less tells me what is knowable at this point in time...