Common Law Questions

[wikychick]

Good day or is it really? For me, not so much.

I have been in a common law relationship for past 9 years with my "husband" and we have two lovely children.

My husband has recently been charged in criminal court for alleged offences which i won't go into. When I received an after midnight call from police regarding these offences, this was my last straw. I decided that I no longer wanted to be in this relationship which has been more down than up and many of the troubles and issues we have (and he currently has) were due to his binge drinking.

When I received the call, he was away working (left Oct 13th). I allowed him to come back to the house on Monday the 31st.

My question is . . . if we are common law but he is still staying here can we legally be "seperated". My understanding (for tax purposes) is that we must be apart for 90 days in order to be seen as "no longer" common law.

[Kenny]

Wikychick:

There are two different answers to your question. Common-law relationships and breakdowns are defined differently by CRA and on Federal and Provincial levels. Personally, I have a common-law wife by Federal regulation, not provincial.

For income tax purposes, there is a 90 day rule for breakdowns. The CRA definitions for these are at this link:

Marital status

The Family Law Act of Ontario defines how a seperation can occur as follows:

"54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27)."

Finally, as all provincal legislation can't supercede Federal legislation, the applicable part of the Divorce Act dealing with this subject is:

"8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
Breakdown of marriage
(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Calculation of period of separation
(3) For the purposes of paragraph (2)(a),
(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose."

In closing, although seperation is not complicated on paper, it is complicated when dealing with the courts. As far as the police go, they have little to no knowledge of the subject, albeit they think otherwise.

Hope this helps.


Ken

[BeenThereTwice]

Proving that you are separated will likely at some time in the future be required. If you continue to live in same house with ex (as I do with ex wife) it can prove quite difficult to convince someone (like CRA, tax credit authority, and so on) that you are indeed separated. But it CAN be done (I did it). You should at least try to get an agreement with you ex to say that "we are separatedas at <date>". Needless to say you should also not be sleeping in same bed, and your financial arrangement together should change. No joint finances etc.

[wikychick]

ken:

thanks for your quick reply but I think I am still as confused (if not more) as I was

BeenThere:

Yes he is currently sleeping on couch and only reason he is here currently is that he has no where else to go. I don't dislike him enough to see him on the street! (yet?) Is supposed to be going to Ont. Works next week for social service application.

Bank account has always been in my own name and he has only recently opened an account for himself. My pay, Child benefit, his GST and Ontario tax credit etc all go in to my account.

So, we should have a temporary document that states that as of such and such date we are no longer considering one another as a 'conjugal' couple and that the only relationship that exists will be to parent our two children?

I appreciate all your help and advice.

Wikychick

[standing on the sidelines]

I had a terrible time convincing CRA we were separated even with a copy of the signed separation agreement where it was stated we separated in December 2010. The said that even though we considered ourselves room mates after that, they didnt. They took the date of July 22 when I changed the locks. It didnt matter that he was dating etc. So I had to wait until October to send the papers back to CRA. No kids and no joint accounts etc the only thing we owned together was the house.