Announcement

Collapse
No announcement yet.

Terminal Aggravation

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Terminal Aggravation

    I call this terminal because this has gone on way too long.
    I am searching info for a g-friend.
    Scenerio:

    Not married, not common-law
    one 12 yr old daughter between them
    12-13 years under same roof(last year he stayed out in the barn)
    12 years no conjugal relationship(yes 12 years! you would think he would leave)
    home in her name only
    home bought with her inheritance and mortgage paid for by her only
    zero improvements to home (house badly in need of repairs)
    files taxes as a single mother
    work benefits for daughter only
    man is a serious drunk (seen it myself....sad)
    man has trouble holding a job
    man has put friend on bankruptcy to avoid paying money owed
    man is what I would call a house-boy: gets food and a place to sleep for minimal (mostly non-existent)chores

    Here is the question:
    She wants him out. She had a lawyer draft a letter giving him 30 days notice, to find legal representation, and how he needs to have a clean safe environment without alcohol to have visitation with daughter.
    He is refusing to leave, claiming he has rights to stay & rights to her property. OPP is requiring a court order to remove him.
    Everything I have read so far says he has no rights to anything and must leave. Does she really need a court order? Does the lawyer get this court order? What do you ask for? Can she request a restraining order through the police instead? Could she not just remove his stuff and have him charged with tresspassing, there is no rental agreement/lease?

    Thanks in advance for any info provided.

    I am just greatful she has finally decided to do something about this terminally ridiculous situation.

  • #2
    He may argue that they are common law to the police and the child is clear evidence that they had a relationship at one time. If the police believe that, then they can't kick him out as we would have a right to possession of the home.

    Comment


    • #3
      Originally posted by dadtotheend View Post
      we would have a right to possession of the home.
      I hope that's a typo.
      Do you mean habitation or possession?
      Common-law partners have no right to possession of a home if they are not on the deed.
      I'm sort of confused by what you are saying?

      Comment


      • #4
        You are right in general in CL unions the one partner has no share in the ownership unless their name is on the deed, howver, I think that what dadtotheend is referring to is that, the pure presence of the child, demonstrates a relationship of some magnitude, and as such, void a name on the deed, he can claim (possibly by way of undue hardship) for a share in the equity of the home given the length of the "relationship".

        She would have to clearly show that he was no more then a tenant, and that the child was a result of a single, unperpetuated union (this sorry sounds odd I know, but I hope it gets the point across?), and that nothing further evolved by way of a “relationship”. She would have to also document that he did no upkeep or improvements to the home either by actual fixes to the home or gardening etc. except in return for lodging if formal rent was not paid.

        Comment


        • #5
          Yes, it was a typo above, sorry about that.

          In family law, each spouse (married or common-law) has a right to live in the home, regardless of who owns it.

          Even if there is no common-law relationship, I'm guessing it would then fall under Landlord and Tenant and it remains a civil matter, where the police wouldn't be able to kick him out. If she wants him out, she will probably have to do it in civil court. She will have an easier time of it if she can demonstrate that they aren't common-law.

          The police will only remove him if it is a criminal matter. Sadly, more than one unscrupulous spouse in the past has trumped up domestic abuse issues to do exactly that. In today's climate of arrest first, ask questions later, that is easy to do.

          Comment


          • #6
            This has been good insight, thanks.

            The abuse is as stated. He is a drunk.(The slur your words, can't walk straight, drinking almost every day kind) It is no atmosphere for a child period.
            Abuse will not be embellished just for the sake of removal. That's wrong.
            Him claiming he has any right to anything is just another form of abuse to me. You must contribute in order to accumulate. That is something that just hasn't happened. If anything he has done more damage and sold off possessions that were not his to sell.
            If he was doing this to an elderly person, they would be like flies on s*** to remove him. Funny how certain situations are deemed tolerable?!?

            Lifestyle in itself will reveal that they live separate lives. There are many around who can(and will) attest to that.

            Thanks for the advice/insight. I hope it will be helpful for her.

            Comment


            • #7
              Mom has to decide whether this situation is still tolerable or Dad has to go. It sounds like she is close to or at the breaking point.

              Please strongly consider Al-Anon, at least check their web site, or better still go to a meeting to assist you in understanding this situation. It really helped me a few years back. Alcoholics use the anger, resentment and frustration arising from the drinking of the people around them to their crafty advantage in order to deflect attention away from the real issues, which is the drinking. Al-Anon can arm you with useful strategies to avoid falling into this trap.

              His having been allowed to stay on the property for many years has enabled his behaviour by protecting him from the consequences of his drinking. From what you say, he would otherwise be unable to maintain a home, so continuing to let him stay gives him no incentive to change, indeed it encourages the drinking, to say nothing of the continuing effects on his child.

              Consider letting him know that he is no longer welcome to stay on the property and give him reasonable, demonstrable notice that he is to leave. If he doesn't agree to leave, then follow through on civil procedure to get him out. Hopefully you can do it as landlord rather than spouse. Either way it could take months, so dig in.

              What's most important to him is protecting his ability to drink. Kicking him off this property threatens that. Make sure the child is nowhere on the property when he is advised and take the necessary precautions to protect against a possible angry and violent reaction when he is told and throughout the time it takes to get him to leave, which could be lengthy.

              Also be prepared for the emotional persuasions he may use on his daughter e.g. "Mom wants Dad to leave, why would she do that to us?" Consider seeing a counsellor to assist you in providing explanations to the child that will protect and comfort her about this change but at the same time reassure her that her father is not being totally removed from her life.

              Call the Law Society of Upper Canada for a free half hour telephone consultation with a lawyer to get the legal perspective.
              Last edited by dadtotheend; 01-06-2009, 11:50 AM.

              Comment


              • #8
                Can anyone tell me why this is not a common law relationship?

                12 years together, one child. Seems like a marriage to me, no matter how much it sucks, how much they don't get along, how they don't have any intimacy.

                Just wondering....

                Comment


                • #9
                  Well, the Dad has been staying in the barn for the last year. That would seem to carry some weight, I would think. But you're right, it could be difficult and I would guess they are going to have problems, meaning that going to family court might have to be the answer.

                  Comment


                  • #10
                    Originally posted by dadtotheend View Post
                    Well, the Dad has been staying in the barn for the last year. That would seem to carry some weight, I would think. But you're right, it could be difficult and I would guess they are going to have problems, meaning that going to family court might have to be the answer.
                    The barn, the couch, a room in the basement... I don't think the courts will care. It's a common law relationship.

                    She can apply for sole custody of the child and possession of the home and have him removed. There is a good chance he can try to claim equity in the home, and spousal support... and a good chance he'll get both.

                    12 years of "status quo" means a lot to the courts.

                    Comment


                    • #11
                      Yep, you're right. The spousal support could be especially damaging as the alcoholism might be a need for permanent support.

                      Pretty difficult to obtain exclusive possession of the home without violence in the relationship. She could argue that his drinking causes an unhealthy environment for their daughter I suppose. I wonder whether that would be compelling.

                      Comment


                      • #12
                        If you are married and you stop sleeping with someone and they do not occupy the same room, is that not considered the date of separation?
                        Why would this be any different in a common-law relationship?

                        Comment


                        • #13
                          Originally posted by dadtotheend View Post
                          The spousal support could be especially damaging as the alcoholism might be a need for permanent support.
                          Will the abuse never end? He's a bum pure and simple. How can that type of person have any right to continue abusing?

                          Originally posted by dadtotheend View Post
                          violence in the relationship.
                          Hear say from me but she did tell me once that he smacked the child in the head and sent her into a door frame while drunk.

                          I guess this will just become a huge battle and the lawyers are the ones that win.

                          I am just greatful she has the strenght to see this through to the end now.

                          Comment


                          • #14
                            Originally posted by NexStar3 View Post
                            If you are married and you stop sleeping with someone and they do not occupy the same room, is that not considered the date of separation?
                            Why would this be any different in a common-law relationship?
                            Yes, a date on which the parties agree that they began living separate lives although in the same home or (in outbuildings in this case!!) can be the date of separation.

                            Comment

                            Our Divorce Forums
                            Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                            Working...
                            X