Announcement

Collapse
No announcement yet.

Many questions

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

  • Many questions

    Some background: Partner and I began dating in June of 2002. I have a daughter from a prior marriage who was 2 at the time we began dating. We dated un October 2003 at which time he ended the relationship as he "didn't love me". In February of 2005 we got back together and in October 2006 he had me move in with him. At the time I was living in an apartment and ended up getting rid of a lot of my furniture when I moved in with him, including mine and my daughter's bed, kitchen table and chairs, etc. We have been living together since then and presenting ourselves as a family to friends and family. My daughter considers him her "other Dad" and my partner is involved in the daily parenting of her including punishment's like time-outs, etc. I work part-time outside the home as well as part time from the home (that has not changed since I moved in except my hours outside the home have been reduced by 5 hours/week due to injuries from an MVA in May 2005). I also have a parent with terminal cancer. I have paid him $220 bi-weekly since I moved in to pay towards expenses, as well as purchasing groceries for the whole family (he also buys towards groceries). He has lavished many gifts on my daughter, including buying her a Playstation game just a week ago for Christmas (he owns the Playstation, not me)

    He has now ended the relationship, again citing "he doesn't love me enough to move forward." When I moved in with him in Oct 2004 I told him my condition for moving in was that we would get married at some point. He also indicated at that time that he wanted us to have a child together. I am going to look at apartments today.

    My question is:
    Am I entitled to any of the posessions in the house since I gave up most of mine when I moved in? (obviously under the impression that this was a permanent move and we would be getting married at some point).
    I would like to ask him for two beds (the one my daughter sleeps in as well as the spare bed downstairs) and a lump sum of csah in the amount of $2000 to allow me to get back on my feet again. He makes 4x my salary (he earns almost 100,000/year).

    Thank you in advance for any help you can offer. I and my daughter are both devestated over this - she has often referred to him as her "dad", including school projects.

  • #2
    hurt1,

    Welcome to the forum,


    Are you in Ontario?

    lv

    Comment


    • #3
      Sorry, yes, I am in Ontario.

      Comment


      • #4
        hurt1,

        as you mentioned,

        Am I entitled to any of the possessions in the house since I gave up most of mine when I moved in? (obviously under the impression that this was a permanent move and we would be getting married at some point).
        Your are entitled to your own possessions. The other parties possessions remain to be their own.


        I would like to ask him for two beds (the one my daughter sleeps in as well as the spare bed downstairs) and a lump sum of Cash in the amount of $2000 to allow me to get back on my feet again. He makes 4x my salary (he earns almost 100,000/year).
        It doesn't hurt to ask. I suspect you could bring forth a claim of relief in the small claims court. Due to the brief relationship of cohabitation (3 months) you have no recourse under the Family Law Act.


        No doubt that you and your child are devastated by this development. If the individual had morals he would assist you back to the position you held before cohabitation.

        The Law of Karma - whats goes around, does come around at some point or another

        http://www.ncf.ca/freenet/rootdir/me...hs/karma2.html

        In Buddhist teaching, the law of karma, says only this: `for every event that occurs, there will follow another event whose existence was caused by the first, and this second event will be pleasant or unpleasant according as its cause was skillful or unskillful.' A skillful event is one that is not accompanied by craving, resistance or delusions; an unskillful event is one that is accompanied by any one of those things. (Events are not skillful in themselves, but are so called only in virtue of the mental events that occur with them.)



        lv

        Comment


        • #5
          Actually, we have been living together for 14 months - I moved in in October 2005. I thought the period of time was 1 year?
          Thanks again, and I do agree with you on the Kharma issue. I've already told him that I feel sorry for him in a way - he's incapable of having an honest, loving relationship with anyone and at his age (almost 37) he's not likely to.

          Comment


          • #6
            hurt1,

            Sorry I read the date wrong.

            For some, 1 year cohabitation is sufficient length. Under Federal Laws you would be considered common law - for division of pensions and CPP credits, health benefits etc

            For support purposes the Family Law Act applies

            If the individual acted as a parent to your child you may have grounds to bring forth an application for child support for support of your child. This may give you some leverage to get your lump sum out of court.

            For spousal support purposes, the law is clear as listed: 3 years continuous cohabitation or

            have a child and living in a relationship of some permanence.

            You may be also entitled to an unjust enrichment claim with your contribution to the home.

            What you are asking for is a reasonable amount in consideration of the circumstances. I do suspect that you would qualify for legal aid and perhaps if you started an application, the individual may just decide to give you what you are requesting rather than spending much more defending a claim of child support for a child whom they acted as a parent.

            If it was me, I would visit the nearest legal aid office, apply for same, once qualified, visit a lawyer and start an application.

            I always say what goes around comes around!

            lv

            Comment


            • #7
              Thank you SO much - that is exactly the encouraging news I was hoping for. He definitely put himself out as a parent to her - in fact, I think his family overseas (he's from _______________) are going to be pretty surprised. They easily sent over $300 worth of Christmas presents for ______________, so clearly they were treating her as family as well.

              The difficult part is a lot of places are closed down right now for Christmas holidays. Horrible timing!!

              I will come back and let you all know how this worked out. And thank you again for the assistance, I really, really needed to hear something encouraging today. I've spent since yesterday when he told me alternating between crying my eyes out and just sitting here numb. I need to get off my butt and get something done instead. I have already been to see an apartment nearby (I am hoping to keep my daughter at the same school so it's less disruption for her). She is absolutely shattered and I am trying to put up a smiley face in front of her.
              Last edited by logicalvelocity; 12-28-2006, 01:28 PM.

              Comment


              • #8
                hurt1,

                I deleted your child's name from your post and location of family. You never know who is going to read same. You may want to delete your browser history if your still in the home.

                (I am hoping to keep my daughter at the same school so it's less disruption for her).
                Yes, your child needs stability right now and so do you. I do believe the legal aid offices are open this week.

                You can find information on legal aid locations here

                http://www.legalaid.on.ca/en/locate/default.asp

                lv
                Last edited by logicalvelocity; 12-28-2006, 01:29 PM.

                Comment


                • #9
                  Oh - Sorry! I didn't even think when I put that information in.

                  I am hoping this will end amicably. I am thinking of putting in writing to him what my requests are, and then, if he refuses to comply, proceed with seeing a lawyer. Or do you think I should just go ahead with lawyer involvement straight off without giving him the opportunity to make good on my request?

                  I am really sorry for so many questions. This is very awkward for me. Until 2 days ago I thought everything was fine, in fact, both of our families were expecting me to get an engagement ring for Christmas. Many of the gifts sent from his family to both my daughter and I reflected our future together (a beautiful kilt outfit for both of us, including a sash and kilt pin in my family name). I am just so stunned here. I have made a list and am checking it twice though..LOL

                  Again thank you for your invaluable advice here.

                  Comment


                  • #10
                    hurt1,

                    Careful how you word your formal request. This could be used as evidence.

                    You could start by requesting verbally and see the other parties response. If you receive no co-operation on the matter, then proceed with legal aid and subsequently retain a lawyer. The lawyer will most likely send a formal letter to the party before proceeding with an application in the court.

                    I should make you aware that if an action is started in the court, part of the obligation of receiving legal aid is to request costs. Additionally, if an action is started and the individual acted as a parent, they could also bring forth a cross claim of the child's access.

                    lv

                    Comment


                    • #11
                      Well, I asked him, nicely. I asked him for $3000 cash to allow me to pay for first and last months rent as well as purchase things that I had given away when I moved in with him. I asked him for the 2 beds, the Playstation for my daughter, and the TV in the living room (he has 3 TV's including a 60 inch one in the basement). I reminded him that this is the second time he has done this to me, except the first time we were'nt living together. I reminded him that at the very least he should do this for my daughter, who he has treated as his own (as has his family). He said he feels I am being unreasonable and he is going to see a lawyer.

                      I did not mention anything about the possibility of accessing his Pension credits or the child support. Should I have? Or at the very least told him to be sure to mention it to his lawyer? I am fearing at this point he is going to take this to court.

                      If it does go to court, and I end up asking for CPP credits and child support, how would that work, generally speaking? Would he have to pay support for the rest of my daughter's life, or only 1 year? (the time we lived together). Since I get support already from her birth father, does this affect the amount awarded? At his income level, it would be a pretty hefty amount per month, I think. And I have NO IDEA how division of CPP credits works. LOL

                      I am so thankful I've had this place to come to to ask questions. I went down to the Legal Aid office today and it was PACKED (no doubt because of the holidays) I'll have to try again next week one afternoon when I am off work.

                      Comment


                      • #12
                        PS. I would also like to point out here that I am not a money hungry gold digger. I do not WANT child support from him for my daughter. What I do need is a bargaining chip, as it were.

                        I am under the impression that should this go to court that the judge may very well order he pay child support even if I do not ask for it? Is that correct?

                        Comment


                        • #13
                          hurt1,

                          as you mentioned,

                          Well, I asked him, nicely. I asked him for $3000 cash to allow me to pay for first and last months rent as well as purchase things that I had given away when I moved in with him. I asked him for the 2 beds, the Playstation for my daughter, and the TV in the living room (he has 3 TV's including a 60 inch one in the basement). I reminded him that this is the second time he has done this to me, except the first time we were'nt living together. I reminded him that at the very least he should do this for my daughter, who he has treated as his own (as has his family). He said he feels I am being unreasonable and he is going to see a lawyer.
                          That is a reasonable request in consideration of that did give up your existing "home", belongings and uprooted your child on a "notion or promise" of marriage or union with future plans of children. Let him go see a lawyer, I do suspect the lawyer may tell him that he may be faced with an obligation to support your child if he acted as a parent. The onus would be on you to prove on the balance of probabilities that he did. It is irrelevant if you already receive child support from the child's biological father. Keep in mind the legal term "Loco Parentis." The point is your child is now use to a certain standard of living for the last 14 months and now that is going to change, Therefore, I believe you have a significant legal stance.

                          The term "loco parentis" means literally, “stand in the place of a parent”.
                          For a person to stand in loco parentis they must intentionally and voluntarily take on the parental relationship in spite of having no legal obligation to do so.

                          The onus will be on you to prove on the balance of probabilities that they indeed intentionally and voluntarily took on parental responsibilities of your child.

                          see some case law on the subject:

                          Swindler v. Swindler, 2005 SKCA 131 (CanLII)
                          http://www.canlii.org/sk/cas/skca/2005/2005skca131.html


                          Gill v. Gill, 2006 CanLII 8467 (ON S.C.)
                          http://www.canlii.org/on/cas/onsc/20...onsc10617.html which refers to the highly cited SCC authority on the issue Chartier v. Chartier [1999] 1 S.C.R. 242 Paragraph 6 - 8
                          [6] In Chartier v. Chartier 1999 CanLII 707 (S.C.C.), [1999] 1 S.C.R. 242, the Supreme Court of Canada sets out the factors to be considered in the determination of the issue of in loco parentis. Bastarache J. for the court rejects the usefulness of the old common law interpretation of in loco parentis, which was tied to trust doctrines and focused on voluntariness and intention, in favour of a modern understanding of the words “stands in the place of a parent” in the Divorce Act. (Paragraph 18-20, 39 of Chartier). At paragraph 32 he states:

                          The provisions of the Divorce Act that deal with children aim to ensure that a divorce will affect the children as little as possible. Spouses are entitled to divorce each other, but not the children who were part of the marriage. The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them.



                          [7] Thus, in Chartier, the unilateral withdrawal by an adult found to have stood in the place of a parent is not valid. The court held the material time period for determining whether a person stands in the place of the parent is “as of the time the family functioned as a unit”. (Paragraph 36). “Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child”. (Paragraph 40).

                          [8] The factors relevant to the determination of whether a person stands in the place of a parent are to be viewed objectively, as established from the evidence.

                          The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the stepparent treats the child as a member of his or her family, ie, a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent, whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the stepparent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. (Chartier (Supra) Paragraph 39).

                          I did not mention anything about the possibility of accessing his Pension credits or the child support. Should I have? Or at the very least told him to be sure to mention it to his lawyer? I am fearing at this point he is going to take this to court.
                          You could apply to CPP on your own - See this on CPP credit division. Any credits you earned will also be up for division to him. However, I believe you would be further ahead with mutual division of credits. See this site on CPP credit division on Separation and Divorce

                          http://www.hrsdc.gc.ca/en/isp/pub/fa...s/credit.shtml

                          If your common-law relationship ended on or after January 1, 1987 you can have the credits split if:
                          • you lived together continuously for at least one year;
                          • when you apply, you have been living apart for at least 12 consecutive months (unless your former spouse or common-law partner dies in that time); and
                          • you apply within four years of the date you began living apart.


                          I am sure his lawyer will advise of what possible claims may exist such as child support and CPP division of credits. I do suspect he will not start an action unless he is interested in exercising some of your child's access. I do suspect that once he does speak with a lawyer, he may be interested in settling the issue and giving into your request.

                          However, you could be faced with the possibility that he may want to continue a relationship with your child. However, a child's access is subject to the best interest test if he did proceed with such a claim.

                          If it does go to court, and I end up asking for CPP credits and child support, how would that work, generally speaking? Would he have to pay support for the rest of my daughter's life, or only 1 year? (the time we lived together). Since I get support already from her birth father, does this affect the amount awarded? At his income level, it would be a pretty hefty amount per month, I think. And I have NO IDEA how division of CPP credits works.
                          You are looking at receiving a lump sum of 3K. This is a bargain. I do not think you claim is frivolous. If the matter goes ahead, it will cost him a significant amount of legal fees just to defend same. He does stand a significant chance that the courts will find that he did indeed act as a parent in a volunteer capacity. If he has common sense, he will settle the matter. If he refuses and the courts find that he stood in loco parentis; child support could be paid up until your child receives their first post secondary diploma or degree. Payable child support on an income of 100K is $ 877 monthly for one child plus perhaps sharing of extraordinary expenses. So I reiterate, let him go see a lawyer, he may be shocked and most willing to agree to your request.

                          PS. I would also like to point out here that I am not a money hungry gold digger. I do not WANT child support from him for my daughter. What I do need is a bargaining chip, as it were.

                          I am under the impression that should this go to court that the judge may very well order he pay child support even if I do not ask for it? Is that correct?
                          I understand your position fully, but as I mentioned you did give up your home, your belongings, uprooted your child on a promise or notion of marriage and additional children in the future with this individual not just once but a number of times. You have to use what bargaining power that is available to get some compensation to get you reestablished in life. You have a child to look out for. 3K is a bargain plus some belongings. If it goes to court and trial I do suspect he may spend over 10K easily defending the claim and then lose.

                          If you had lived together 3 years continuous cohabitation, or had a child together and living together in a relationship of some permanence, you wouldn't have to worry as you could seek lump sum spousal support, periodic spousal support and child support and perhaps an unjust enrichment claim.

                          As I said- Karma- what goes around does come around!

                          lv
                          Last edited by logicalvelocity; 12-30-2006, 01:32 AM.

                          Comment


                          • #14
                            help

                            I was some what of the same situation as you, having to replace most of my belongings, It took me 6 months just to get my clothes. But what happen with me was when people heard of my situation stuff started coming. People are great and when they know someone is in need they start cleaning out their closets for you.


                            Also in most towns there is a freecycle, it is stuff people do not want anymore but is to good to go to the dump, you can get table, chairs etc. I have pick up furnture, clothes and kids toy.

                            Just google your town and freecycle and you should find the site it is usually through yahoo


                            Good luck it is hard to redo your home when you have a child
                            but don't be afraid to ask other people in your community for help.

                            Comment


                            • #15
                              Again THANK YOU!!
                              Exactly the information I am looking for. My Mother is quite miffed that I am not asking for more money but I'll be quite content if I am just able to pick up my life from where it was and carry on from there. I don't think I will have any problems proving that he has acted in a parental capacity. In fact, there was a list of "rules" that he wrote up and placed on her bedroom closet door (I've already taken a photo of it for proof). My daughter has always received birthday and Christmas gifts (very generous ones) not just from him but also from his family. He is listed as her step-parent and emergency contact at the school she is enrolled at. She even refers to him as her "step-dad". Our standard of living will definitely decline when we move out - he has a nice, big home with an inground swimming pool, and they also planted a vegetable garden for her last summer in the backyard. Sigh. He also has cared for her during the times when I have been at the hospital with my mother (she has terminal cancer). Oh what a tangled web! LOL

                              I can't tell you again what an invaluable asset this forum has been for me, and, I suspect, a lot of other people.

                              I do firmly belive that what goes around comes around. I have already begun packing and hopefully can be moved out by the middle to end of January and start the new year on a new foot.

                              Thank you AGAIN, so very much. It is very generous of you here to offer your time and knowledge with nothing in return but some genuinely hearfelt thank yous.

                              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