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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 09-06-2006, 01:52 PM
diane diane is offline
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Default Is this still considered as common law

My ex left me in April of 2005 for another women on the internet, then he weezled his way back into our home in the bastment the end of july 2005 to this day Sept 6 2006 he is still seeing this girl and dateing others and has clamed us common law on our 2005 taxes.I have been takeing steps with my lawyer and letting him know everything that is going on and we have a court date on November 1st. The Government is still considering us to be still common law but we are not together in a relationship since he left me for another women please help.
Old 09-06-2006, 02:57 PM
Sk8r Sk8r is offline
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The CRA has a different definition of Common Law then does Family Law. In the eyes of the CRA if you are living in the same house for more than a year and you ever represented yourself as a couple, then you are common law. If he lives in your home and claims to be common law, you'll have a hard time convincing the CRA otherwise.
Old 09-06-2006, 03:46 PM
mom22galz mom22galz is offline
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Default separate and apart under the same roof

Hi Diane,

It is not an easy thing to prove, but the CRA will accept that in some cases people are forced to live "seperately and apart under the same roof".

Basic criteria, from case law:

"In Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), Kirosko D.C.J. at pages 381 and 382 developed the following seven questions or criteria to determine when parties are or are not living separate and apart :

1. Shelter:
(a) Did the parties live under the same roof ?
(b) What were the sleeping arrangements?
(c) Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:
(a) Did the parties have sexual relations? If not, why not?
(b) Did they maintain an attitude of fidelity to each other?
(c) What were their feelings toward each other?
(d) Did they communicate on a personal level?
(e) Did they eat their meals together?
(f) What, if anything, did they do to assist each other with problems or during illness?
(g) Did they buy gifts for each other on special occasions?

3. Services:
What was the conduct and habit of the parties in relation to:
(a) preparation of meals;
(b) washing and mending clothes;
(c) shopping;
(d) household maintenance; and
(e) any other domestic services?

4. Social:
(a) Did they participate together or separately in neighbourhood and community activities?
(b) What was the relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties?

5. Societal:
What was the attitude and conduct of the community toward each of them and as a couple?

6. Support (economic):
(a) What were the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)?
(b) What were the arrangements concerning the acquisition and ownership of property?
(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children:
What was the attitude and conduct of the parties concerning the children?

Here's a link from CANLII providing hits from the tax courts that have the terms "+same +roof +apart"

It can be a hard sell, but there are successful precedents your lawyer can call upon...

Best of luck!
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