Common-law and the Family Home

[baldclub]

My question: when does someone living common-law for approximately 9-11 years, have the right to stay in the house if there are shared childreW? Can the other common-law spouse who owns the home kick them out?

I've looked through the threads, there is a lot to sift through but maybe someone can either give me a quick answer or redirect me to a more in-depth thread.


Taken from: CLEO Community Legal Education Ontario

Separation and Divorce or Death of a Spouse: Property Division

The family home

The rules about who gets to stay in the family home,
and who can sell it, depend on whether you were
married or in a common-law relationship.

Married couples
A “matrimonial home” is a home where a legally
married couple had been living together at the time
of their separation. They can have more than one
matrimonial home, such as a cottage.
Each married spouse has an equal right to stay in the
matrimonial home until it is sold or until there is a
court order or agreement, even if the legal title to the
property is only in one of their names. Neither spouse
can sell or mortgage a matrimonial home without the
other spouse’s written permission.

Common-law couples
The rules for matrimonial homes do not apply to
common-law spouses. A common-law spouse does
not automatically have the right to stay in the family
home if it is not in his or her name. If one common-law
spouse owns the home they can sell or mortgage it
without the other spouse’s permission.

[involveddad75]

I'm no lawyer but I would think if you kicked them out and kept the children. You might be seen as engaging in self help.
My sister in law told me that I couldn't kick my common law partner of around 3 years, because she had residency rights. Not sure if it's true.
But you could use the search term residency rights.

[OrleansLawyer]

Marriage provides a special set of rights, including a personal claim for occupation of real property if it has been the matrimonial home.

If you are living in someone's home - or in their car, their tent, their mansion, or on their patch of land - they can, at their convenience, have you removed from said property unless you have established legal rights to the contrary.

[baldclub]

Marriage provides a special set of rights, including a personal claim for occupation of real property if it has been the matrimonial home.

If you are living in someone's home - or in their car, their tent, their mansion, or on their patch of land - they can, at their convenience, have you removed from said property unless you have established legal rights to the contrary.

Some examples of the bold above?

[standing on the sidelines]

if they are paying you a set monthly amount, that could be seen as rent and then maybe they could be considered a tenant??

[baldclub]

Common Law vs. Marriage

I quote:

"When is comes to property rights, however, the differences are substantial. While married persons are entitled to and responsible for a portion of all assets and debts accumulated by both partners over the course of the marriage, common law partners are not entitled to make such claims against one another. The current Ontario family legislation does not provide an individual coming out of a common law relationship, no matter how long it has lasted, with a legal entitlement to any property, or to the increase in value of any property, which is not in his or her name at the time of separation.

So what does this mean from a practical perspective and how is it dangerous? Well, it is dangerous, especially in long-term common law relationships, as one partner can contribute a great deal of time, effort and money towards an asset, very often a home, during the course of the relationship and end up with nothing to show for it upon separation."

[baldclub]

Still looking for any loopholes but found this very interesting "tip":

5 Things You Should Know About Common Law Relationships

I quote:

4. You may still have certain rights in connection with your partner’s property.

In Ontario, common law partners do not have the same property rights as people who are legally married. Generally speaking, property such as furniture and household items continues to be owned by the person who brought it into the union. However, in the right circumstances partners in a common law relationship may still make claims against each other’s property, based on the concept of “unjust enrichment.” This stems from the concept that one partner in the relationship should not be allowed to profit at the other partner’s expense, in terms of their respective contributions to the union. One partner can therefore apply to have the other partner compensate them accordingly, for the value of property, services, and benefits that the other partner received at the first partner’s expense.

[OrleansLawyer]

Some examples of the bold above?

Ownership, marriage, tenancy, contracts

[OrleansLawyer]

4. You may still have certain rights in connection with your partner’s property.

These must be established through a constructive trust. Prima facie, none exist until an Order is made.

[baldclub]

These must be established through a constructive trust. Prima facie, none exist until an Order is made.

Prima facie:

The Free Dictionary: Legal Dictionary

I quote:

[Latin, On the first appearance.] A fact presumed to be true unless it is disproved.

In common parlance the term prima facie is used to describe the apparent nature of something upon initial observation. In legal practice the term generally is used to describe two things: the presentation of sufficient evidence by a civil claimant to support the legal claim (a prima facie case), or a piece of evidence itself (prima facie evidence).

For most civil claims, a plaintiff must present a prima facie case to avoid dismissal of the case or an unfavorable directed verdict. The plaintiff must produce enough evidence on all elements of the claim to support the claim and shift the burden of evidence production to the respondent. If the plaintiff fails to make a prima facie case, the respondent may move for dismissal or a favorable directed verdict without presenting any evidence to rebut whatever evidence the plaintiff has presented. This is because the burden of persuading a judge or jury always rests with the plaintiff.

Assume that a plaintiff claims that an employer failed to promote her based on her sex. The plaintiff must produce affirmative evidence showing that the employer used illegitimate, discriminatory criteria in making employment decisions that concerned the plaintiff. The employer, as respondent, does not have a burden to produce evidence until the plaintiff has made a prima facie case of Sex Discrimination (Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 [1981]). The precise amount of evidence that constitutes a prima facie case varies from claim to claim. If the plaintiff does not present a prima facie case with sufficient evidence, the judge may dismiss the case. Or, if the case is being heard by a jury, the judge may direct the jury to return a verdict for the respondent.

Prima facie also refers to specific evidence that, if believed, supports a case or an element that needs to be proved in the case. The term prima facie evidence is used in both civil and Criminal Law. For example, if the prosecution in a murder case presents a videotape showing the defendant screaming death threats at the victim, such evidence may be prima facie evidence of intent to kill, an element that must be proved by the prosecution before the defendant may be convicted of murder. On its face, the evidence indicates that the defendant intended to kill the victim.

Statutes may specify that certain evidence is prima facie evidence of a certain fact. For example, a duly authenticated copy of a defendant's criminal record may be considered prima facie evidence of the defendant's prior convictions and may be used against the defendant in court (Colo. Rev. Stat. Ann. § 18-3-412 [West 1996]). A Civil Law example is a statute that makes a duly certified copy or duplicate of a certificate of authority for a fraternal benefit society to transact business prima facie evidence that the society is legal and legitimate (Colo. Rev. Stat. Ann. § 10-14-603 [West 1996]).

Further readings
Herlitz, Georg Nils. 1994. "The Meaning of the Term 'Prima Facie.'" Louisiana Law Review 55.

Cross-references
Burden of Persuasion.

[baldclub]

Ok, thanks Orleans lawyer. I feel like a complete idiot having gone through part of my life based on ethics mostly and a clearly weak understanding of civil law.

[baldclub]

I'm no lawyer but I would think if you kicked them out and kept the children. You might be seen as engaging in self help.
My sister in law told me that I couldn't kick my common law partner of around 3 years, because she had residency rights. Not sure if it's true.
But you could use the search term residency rights.

What do you mean by engaging in self help?

Still haven't found anything about the above yet...Still looking for law in regards to residency rights.

[murphyslaw]

CanLII - 2011 SCC 10 (CanLII)

Sorry I cant come up with anything straight forward and easy to read.In regards to common law relationships the non owning spouse does not have automatic rights to the family home but during equalization there cant be a unfair enrichment by one spouse either.Soooo...from what I have gathered ..your ex doesn't have a right to the house but that doesn't mean that you wont be on the hook for money.Did she work during the relationship or give up her career to mind rugrats?

[baldclub]

Funny how people get the roles reversed in my case. No, it was me a stay at home dad who was told I was getting kicked out but allowed to stay because I was watching the kids.

Yeah I spent time and money on the house, enough money that has no paper trail unfortunately. In fact there is a constructive trust claim going on for work done and materials on the house she did buy. That I have proof of, and a very good witness, the builder himself.

[murphyslaw]

Well if the house is in her name ,you are out of luck but giving up your career to be a stay at home parent led you to a loss of income and damaged your career.Look up common law ,unjust enrichment in CanLi.She was enriched by the money you spent on the house.She was enriched by you being the child minder as compared to paying out of pocket.Ergo in equalization she should pay.

Hey Im no legal expert nor do I claim to be .We live in Canada and its all common law here so what's in CanLi should apply to you.If you had lived in Manitoba,Sask,BC.. you would have had the same rights to the house, as a spouse, from a more recent providential act.