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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 03-15-2011, 06:07 PM
Barrhaven_dad Barrhaven_dad is offline
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Exclamation Help - what are my rights??

Hello,
I am currently going through a separation with my common law wife of 8 years. We have two children ages 3 and 6 and are currently living under the same roof (my ex stopped working a few years ago to care for the kids). She had decided to end the relationship in the summer and I have have been maintaining the rent and bills until she gets back into the work force. I was hoping to have things end on good terms but it would appear that my former partner has other plans. I was hoping to find out what my rights are and what I can do to protect myself as I believe she is going to try and take as much as she can from me (I have agreed that I would move out and leave her with most of the furniture to minimize her costs once I have saved enough to cover the costs of setting up a new place to live).

My understanding is that as the father if this ends up in court the odds will be stacked against me and that scares me as I am not the one who wanted the relationship to end and have bent over backwards to try and help her to prepare for the road ahead.

When it comes to support my ex seems to think that I am going to cover everything as she is entitled to a portion of my income for her work at home. She has taken a new job which she will be starting soon that barely pays minimum wage with a commission structure. So once the time comes for support payments she will have a low salary and thus will be entitled to more of mine (is that correct?). If I made over $100 per year that would be fine but I make nowhere near that.

We initially agreed on 50:50 custody and that would be fine but this new job she has taken will involve evenings and weekend work which could mean that I will have the kids more often (which is something I would like).

What are my rights? What can I do? I feel like my ex's anger towards me is clouding her judgment, can somebody tell me what I can do??

  #2  
Old 03-16-2011, 12:12 AM
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karmaseeker karmaseeker is offline
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Welcome to crazytown.

I am helping to dig my partner out of the hole his ex left him in so this is my advice to you on what we are trying to dig through now.

1. Get the house evaluated. Have the contents evaluated to the best you can. Get bank accounts amounts for time of official separation and today. Any other assets - get documents!!! Documents documents documents. Don't think that just cause you think this is fair or that is fair that it is! Know your financial value todate and don't leave until things have been equalized through a LAWYER. It costs more in the long run not to get it done properly in the first place.
2. Have the Lawyer draft up a separation agreement that will be legally binding. Save yourself hassle and money by writing down exactly what custody, access, phone access, etc is going to look like. Process this document through the courts so it is legally secure. Don't agree to something you will regret later to be the nice guy. Be the fair guy and the guy that puts kids needs first not your exes.
3. Child support is determined by your taxes. Her salary doesn't have anything to do with it. You will both have to disclose income for the equalization of the house and if she is going to claim any section 7 expences (daycare etc) this will be done as a percentage of your and her income.
4. Keep emails, texts, and anything else you can from this point forth. It is well and good to hope it won't get ugly but if it does - be protected.
5. Use these forums for support but really - GET A LAWYER. I can't begin to tell you how rough it has been because my fiance tried to be the nice guy and now close to 3 years later we have to go to court and it is hell. All would have been over and done with if he had gotten a lawyer in the first place.


Best of luck to you.
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Old 03-16-2011, 09:32 AM
first timer first timer is offline
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Do not move out until you have a custody/access agreement in place for your kids. You and your ex can still live together and claim separation.

Determine date of separation.

Determine finances (assets and debts) as of date of separation.

If you are paying for all expenses keep records. Close any joint accounts such as bank accounts. Remove her name from any joint credit cards or joint lines of credit. If this is not possible close accounts, cut up her cards, determine whatever options you have so that you are not left with the debt accumulated by her after the date of separation.

There are differences and similarities between marriage and common-law:
Differences between marriage and common law separations in Canada
Similarities between Marriage and Common Law Separation

A quick summary of the similarities and differences between married and unmarried couples is as follows:


MarriedCommon law
Equalization payment upon separationyesno, but may be claim for unjust enrichment
Possession of the matrimonial home upon separationyesno
Special treatment of matrimonial home in dividing propertyyesno
Spousal supportyesyes, if lived together for 3 years or are in a relationship of some permanence and have children
Time limit to apply for spousal supportnoyes in several provinces
Order restraining depletion of propertyyesno, but can use Rules of Civil Procedure for similar sorts of orders
Child supportyesyes
Child custodyyesyes
Succession rights if partner dies intestateyesno, but may be claim for unjust enrichment
Dependant's relief on death of partneryesyes
Equalization payment on deathyesno, but may be claim for unjust enrichment
Possession of matrimonial home on deathyesno, but may be able to claim as an incident of support


Common-Law-Separation-Canada.com home page

This should be a good start!!
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Old 03-16-2011, 09:40 AM
Barrhaven_dad Barrhaven_dad is offline
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Default Thanks Karmaseeker

Hi Karmaseeker, thanks for your insight. I have booked a consultation with a lawyer next week and plan to make the most of the free consultation. I have been keeping every single email since this all started so I feel like I have that base covered.

When it comes to the house we are currently renting so the value of the home isn't an issue, the possessions inside I plan to put together an estimate of the value of what is in there as I don't plan on taking much.

My challenge with the whole thing is that she keeps mentioning being entitled to a portion of my income for spousal support. I have no problems paying for my kids in any way shape or form, they mean everything to me and they have been and always will be my top priority. My issue is the fact that she is taking this low paying job and has this expectation that I am going to pay for everything. She wants half of my tax refund, and me to cover anything she falls short on. I don't mind helping but if someone claims they want financial independence they should be acting on it not talking about it.

This would be so much easier if we were on the same level but I am numbers oriented (budgets, costs, etc) and level headed and she seems to be the opposite. I fear she is heading down a dangerous path and I fear that if things don't go her way she is going to come after me to bail her out.

Sorry for rambling on but I feel like everything is stacked against me, and if I have to pay spousal support and child support my kids and I are going to suffer some major financial challenges while she lives the fun life going out and partying with her friends on my dime.

Thanks again
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Old 03-16-2011, 09:52 AM
Barrhaven_dad Barrhaven_dad is offline
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Quote:
Originally Posted by first timer View Post
Do not move out until you have a custody/access agreement in place for your kids. You and your ex can still live together and claim separation.

Determine date of separation.

Determine finances (assets and debts) as of date of separation.

If you are paying for all expenses keep records. Close any joint accounts such as bank accounts. Remove her name from any joint credit cards or joint lines of credit. If this is not possible close accounts, cut up her cards, determine whatever options you have so that you are not left with the debt accumulated by her after the date of separation.

There are differences and similarities between marriage and common-law:
Differences between marriage and common law separations in Canada
Similarities between Marriage and Common Law Separation

A quick summary of the similarities and differences between married and unmarried couples is as follows:


MarriedCommon law
Equalization payment upon separationyesno, but may be claim for unjust enrichment
Possession of the matrimonial home upon separationyesno
Special treatment of matrimonial home in dividing propertyyesno
Spousal supportyesyes, if lived together for 3 years or are in a relationship of some permanence and have children
Time limit to apply for spousal supportnoyes in several provinces
Order restraining depletion of propertyyesno, but can use Rules of Civil Procedure for similar sorts of orders
Child supportyesyes
Child custodyyesyes
Succession rights if partner dies intestateyesno, but may be claim for unjust enrichment
Dependant's relief on death of partneryesyes
Equalization payment on deathyesno, but may be claim for unjust enrichment
Possession of matrimonial home on deathyesno, but may be able to claim as an incident of support


Common-Law-Separation-Canada.com home page

This should be a good start!!
Thanks so much first timer, the information you have provided is a great help. I just don't like the whole spousal support thing at all. She is taking a very low paying job with commission potential and if she is successful she would probably make more than me and I would be the one paying her support. Is it possible to have an arrangement where by if she makes more income my support payments would be reduced accordingly?

I just don't like the fact that I have been maintaining the household, plan to leave mostly everything with her as to minimize her costs and she is the one that wanted to end the relationship. Doesn't that count for anything? I am giving her a great head start to get her new life in order and am doing what I can to make sure I am going to be able to sustain my life as well. Isn't that enough?

I just hate the fact that she will leave this relationship and won't have to worry about living within her means because if all else fails she will get support from me even if she makes more than me.
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Old 03-16-2011, 10:21 AM
HammerDad HammerDad is offline
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Depending on how much you make, will determine whether or not she qualifies for SS. There are some posts here that will help you determine whether or not you will have to pay.

Think (for simple numbers) if she is making ~40% of your grosse, she will not be entitled to SS. So, depending on what she makes now, taking into consideration possible commissions and whether or not you will have to pay any CS (I see you've worked out 50/50 to start, that is great. Do not waver on that. I will get into CS later), will determine how much you pay. You also said she used to have a better job, what are her qualifications? What is the average salary for someone with her qualifications/training in your area? Why I ask is because, if she is under-employed (meaning she is capable of earning more money due to her qualifications) you can ask the court to impute her income to an amount equal to what she is capable of making, thus decreasing any SS you may have to pay even further.

The duration of SS is generally .5 years of SS for each year of marriage/relatioship.

Custody, with you have 50/50 and possibly more, will benefit you and the kids a lot. Having both parents equally involved in the kids lives is in the kids best interests. With that said, lets get to the finacial aspect. With 50/50, you will use the offset guidelines for the payment of CS. Meaning c/s will be calculated taking into consideration both parents incomes, going to the guidelines and subtracting the lesser amount from the higher amount, and the payor having to pay the difference (for a rough description).

Things you will want to be firm about are:

1. custody remains 50/50 (should you get more over the long run, well great!! But also document and should you find yourself having the kids for more than 60% of the overnights for a long duration - minimum 6 months, better yet a year - you can file for a modification and request cs due to a material change in circumstances. So DOCUMENT, DOCUMENT AND DOCUMENT all your time with your kids).

2. that SS only be for a maximum of 3 years, with such amount being reviewable each year and that each parent must give their tax returns to the other parent so that SS may be reviewed. Ensure that there is a maximum payment, so she can't under employ herself, but should her income increase, your SS would decrease.

3. should she reside with another person in a conjugal relationship SS would stop.

But generally, be a good dad. Don't argue with her EVER. Actually, don't talk to her about anything that isn't child related. Protect yourself by wearing a digital voice recorder so she can't claim a false DV report. Don't ever impede her movement (ie. stand infront the door so she can't get out), raise your voice or act in a menacing manner. Because once she realizes her gravy train is going to revolve around the kids, she will most likely do what she can to ensure her train arrives at the station regularly.
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Old 03-16-2011, 10:23 AM
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The Divorce Act sets out certain factors and objectives that a judge must consider when deciding whether a spouse is entitled to support when they divorce. These include:
  • the financial means, needs and circumstances of both spouses;
  • the length of the marriage;
  • the roles of each spouse during their marriage;
  • the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
  • the ongoing care of the children;
  • the encouragement of self-sufficiency within a reasonable period of time; and,
  • any order, agreement or arrangement already made about spousal support.
If either spouse is paying child support, the judge must also figure out how a requirement to pay spousal support would affect child support payments. The Divorce Act clearly states that a judge must give priority to child support when a person applies for both child and spousal support. Both parents have an obligation to support their children.
The reasons the marriage ended do not affect a spouse’s legal obligation to support the other spouse following a divorce.

Spousal Support
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Old 03-16-2011, 10:31 AM
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You may be responsible for paying some spousal support.

Support would be calculated based on length of relationship, .5 - 1 year for each year of the relationship. For an 8 year relationship, where she is already employed and has a history of employment (that is, you didn't get together straight out of high school and she was always a stay-at-home) it is more likely to be .5 years, so you are looking at 4 years of support for an 8 year relationship.

She has no business wanting your tax refund. You are separated, she has no business at all with your life or how you pay her, although you will have to exchange notices of assessment each year.

Spousal support will be calculated based on your incomes AFTER child support has been removed. Just making up numbers, if the total income between you were 100k, and the amount of child support is 10k per year, then the total income is considered to be 90k. You also calculate after taxes and some work expenses. The with children formula is up to bring her up to 45% of the total income, so by my above made up numbers this would be about 40k per year. If she earns 30k, the support paid would be 10k. However this is just a rough outline of how it is calculated, you will need to run complete numbers through software at a lawyer's office.

You should firm up the custody situation very clearly before talking money. 50/50 means child support will be a set-off, the amount she would pay at her income is subtracted from the amount you would pay. But you should get the intention in writing clearly with her what the schedule is with the children and how you will cover weekends etc, otherwise she may decide to fight you, just stay at home full time and seek 100% child support. You end up paying her more and seeing the kids less.

With a 50/50 you will still pay roughly the same amount to support the kids, only you will be paying most of it when they are actually living with you. You should keep this in mind later if the issue becomes contentious. If she seeks full custody, your response should be that there are no savings for you with 50/50 custody, but that she wants full custody because she wants to receive more support. This is a common point of conflict. You need to come across, if there is a conflict, as wanting the time with the children, and portray her as wanting money. Hopefully you will sort this out without conflict, but be wary and handle things mindfully.

It is best to have a firm agreement in writing, and best with a record *like emails* of ongoing discussions about schedules and co-parenting BEFORE you move out and BEFORE you discuss support.

If she brings up support, just be vary vague, state that there are child support tables and spousal suppport tables and you would intend to follow those tables. Then let her relax and you two concentrate on raising the kids.

Don't drag the kids into conflict, but DO speak to them about the split, and make sure they are involved in the decision to have 50/50 parenting so that if she (or you) try to change the custody arrangement later it is going against the kids expectations. Involve the kids in things like finding a new apartment, picking out furniture, painting, etc. Always emphasise with them that they have two parents, two EQUAL parents, the parents love them equally, will care for them equally, will spend time with them equally.
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Old 03-16-2011, 10:37 AM
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In my situation, we have shared custody, access and parenting (50/50 parenting schedule). My Child support amount takes into account both mine and my ex's income and in my case I pay the difference.

My spousal support amount is based on 50/50 NDI which in my case because we have similar incomes means I pay $0 at this time.

I used this site alot:
http://www.fathers-resources.com/Fre...8/Default.aspx

I also attended the weekly webcasts and asked questions:
http://instantteleseminar.com/?eventid=18396408

I have a sample agreement you can use as well.

My best advice would be for you to let go of all the animosity you feel towards her and focus on what is best for you and your kids. You are not responsible for her well-being, she is so let her be and focus on your own well-being, in the long run its your kids who will benefit the most when you are happy and healthy.
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Old 03-16-2011, 05:50 PM
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Hi there,

I read that you have booked an appointment with a lawyer. May I suggest that you consult with a Collaborative Family Law (CFL) lawyer. The only main adavantage of the CFL for me was that it would avoid the dreaded courtroom showdowns. You actually engage in a "mediation" so you have a say...in court you accept the destiny given by a judge! There does not seem to be much of a cost benefit to CFL vs the traditional lawyer who uses the courts.

At the time of a relationship breakdown, many assumptions are made about who is entitled to what, especially with respect to support, custody and pensions. It is best to stay clam and talk with some sort of lawyer, asap. I have heard that mediators are quite good at what they can accomplish in these situations and they cost less money!

Prepare to be spending a chunk of your time tediously tracking down various personal and financial information that will be shared by both parties as disclosure. Consult a social worker or psychologist for unbiased support if you can.

Do not move out (unless there is a physical or mental abuse occuring) as it will put you in a bad light. Keep the children's well being as first priority.
Document what you can. Photograph the contents of your house (it is a mixed blessing that you do not have a house to deal with!!! So much more paper work!) Do not agree to anything (until consulting a legal person) except that you will both stay calm and focused on your children.

Best wishes
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