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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 08-07-2011, 11:17 PM
lorlaman lorlaman is offline
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Default Where Do I Go From Here?

1.Met in 1984, started living together in 1988 after she received her divorce from first husband ( she married at 16 after quitting school in grade 11!)

2.I my owned house solely in my name, she made no contributions

3. She rarely worked throughout entire relationship

4. 1996, had first child

5. 1998, sold house, investment advisor lost ALL the money (over 150k) in stock market in less than 9 months!

6. 1998, second daughter born

7. 1999, I receive my divorce from my first marriage of 5 years, 15 years after the break up.

8. 1999, legal action taken against investment co.

9. 2000, I borrow 150k solely in my name from my family to purchase house, 357k, 150 down, mortgage 200k, property in both our names.

10.We up the mortgage to 275, then 325 to pay for legals re; investment loss as well as other financial short falls and repairs to house.

11. We still are living common law and never do marry.

12. 2004, she gets prescription for speed from family doctor (unknown to me) to lose weight and goes on a fitness regiment to an obsession level.

13. She becomes severely paranoid and delusional, accusing me of trying to poison/kill her. I don't know what has gotten into her..midlife crisis, history of mental health issues in family (father), menopause, thyroid imbalance (also in her family)?????

14. 2006, She takes a job driving a school bus, clearly not mentally fit (due to drug use still unknown to me), despite my pleas, she sticks out the school year. June 2007, she quits the bus job.

15. I do all house repairs, renovations, repair and service our family vehicles, her gym equipment, large appliances etc. ( I am a licensed Millwright and Industrial Mechanic), she makes no contribution of any sort other than household cleaning and cooking etc.

16. She gets a good job, works 3 days and doesn't show up for work and is terminated.

17. Early 2009, take her to hospital with kids in tow (now 9 and 11), kids report paranoid issues to doctor as well as I. The prescription use is made known to me and the doctor, advises her to get off the drugs since they are poisoning her, prescription written for anti psych medication, never filled.

18. Dec 2009, she does not get off drugs despite repeated pleas from children and I, and is an addict while paranoia worsens. I attend family doctor, explain the situation. Doctor agrees to get her off meds. She has up to 6 repeats for meds @100/pills per bottle, gets all 6 repeats filled at once, flatly refuses to get off the meds, nothing Dr. can do.

19. Jan 2010, we have serious fight over her drug use, children watching, she makes 3 "motions" of kneeing me in the groin, third time she contacts me and I defend myself, pin her to wall and then to floor to restrain her. I call mental health distress centre, phone occupied by 911 operator (she called).

20. Police take testimony from all (I explain paranoia issues as well), she admits the "motions" of kneeing me, denies making any contact. Police arrest her. Officer offers her water from a sealed bottle. She takes a drink and tells officer, the water is poisoned.

21. Police take her to hospital, physc doctor reports she is paranoid and delusional, needs to get off drugs, she refuses.

22. Peace bond keeps her away from home for 3 months, I pay her accommodation, legals, etc. During this time, she has affair and overspends the joint account.

23. I open new account ( I borrow to pay off all $5k overdraft on joint acct and remove the overdraft protection), direct my paycheck to the new account, she has no access to money other than her credit cards.

24. May 2010, She returns home, charges dropped since she agrees to wean off drugs. Does not get any treatment and she is peace bonded.

25. She is sour and adamant that I lied to police getting her arrested. Denies any and all her paranoia, lies to kids and me, won't attend counseling for relationship or self, kids become increasingly distant from her.

26. She begins to drink about 1-26oz bottle of tequila straight, a week or so. I find empty bottles, receipts on her visa (I have copies), bottles hidden in house.

27. June 2010, relationship worsens despite my attempts and advice from my counselor. We sleep in separate beds. She refuses do my laundry, cook for me etc. I remove her from all benefits at work, beneficiary, cancel her cell phone, etc.

28. She starts cleaning houses for $25/hr cash, does not contribute to household. I continue to pay all household bills (except hers), do the grocery shopping, cook my own food, my laundry etc.

29. July 2010, she assaults older daughter (now 13). Police called, no charges laid. CAS again involved, we sign voluntary 6 month contract.

30. October 2010, I propose marriage wondering if this is a contributing factor. She refuses proposal.

31. I now seek legal advice, find I am way better off since we are common law.

32. House is placed for sale, she refuses to assist in cleaning it up.

33. 2 weeks later, she again assaults me, 12 year old daughter calls 911, police arrive and arrest her again; 1 count assault, 1 count breach of peace bond.

34. While in jail, I sent a letter through my lawyer urging her to get treatment, agree to marriage/couples counseling and I will accept her back home. If not agreeable, I will pursue custody of kids, EP of home. Letter goes un-responded.

35. I enroll kids and myself in regular counseling to help deal with the family issues and their relationship with mother.

36. Despite repeated requests from me, she does not forward kids birth certificates, passports, or health cards. I replace health cards.

37. She gets family lawyer/mediator, demands scheduled access to kids. I give her open access subject to wishes of the children. She sees the kids once in November cut short because her boyfriend is waiting for her, then again on Christmas eve, 4 days after her mother passes away. Kids call me wanting to come home as she is becoming increasingly aggressive.

38. She rarely talks to kids on the phone, sends text messages here and there. I keep trying to encourage kids to see her and be more understanding as she is not well, she seems to want little to do with them despite the open and liberal access.

39. March 2011, we attend case conference, accuses me of being an alcoholic, coaching the kids to not see her, demands EP of the home, SS of 2,500/mos, CS at 1,600 mos, division of assets, pension, and accuses me of interfering with sale of house.

40. We agree to OCL intervention, judge imputes income to her of 30k against my 100k income, awards her 1,500 in SS with no CS, scheduled access every other weekend and each Mon and Wed, orders me to take alcohol test and her a drug and alcohol test. Invites her lawyer to bring 14a motion to sell house. Directs me to place her back on all benefits and life insurance.

41. I immediately go for hair follicle test, forward all particulars; bank statements, pension, benefit assignment, etc. to my lawyer within weeks. My lawyer does not forward docs right away. A few weeks later, he suffers heart attack and he nor his office keeps in touch with me. Her lawyer is sending him repeated letters which go unanswered. I call office and get no responses despite multiple lawyers and a secretary working there.

42. I make an offer to buy house at 10k over an arms length offer we receive without RE fees. Her lawyer refuses offer.

43. End of April, 2011, kids have been attending scheduled access for 6 weeks against their will. Mother and kids have a huge fight, call me while I am doctors office. Doctor hears kids describing issue while on speakerphone, he calls police to exercise a form 1 and have her admitted. Police cannot enforce the form 1.

44. Kids refuse to see mother unless she agrees to go to counseling with them. She refuses. Kids remain firm.

45. She attends OCL meeting with her lawyer...not necessary. I attend OCL alone, OCL describes my ex as being guarded and vague at meeting. I attend for 3 hours. Kids attend for 4 hours. After interview with kids, OCL although early, she is 80% certain, kids are not being coached.

46. Since my lawyer is not responding I secure new legal counsel. Coincidentally, next day, I am served with contempt of court motion, accusation of Parental Alienation Syndrome, accusation of material change in circumstances etc....lawyer wants me out of the house and Ex take my place; she live with the kids. I file really long answer with many exhibits proving her lying on several issues and specifying why children do not trust her and at the court house, she suddenly retracts everything. She now agrees to go to counseling with kids, I demand counselor with psych background and she agrees. Settlement conference remanded to September following report by OCL.

47. I supplied list of counselors with psych background right away since her lawyer states "time is of the essence", 1 month later, she finally makes appt but with a generalist counselor, not as agreed. She attends 2 sessions with kids.

48. Mother just receives about 125k in inheritance from mother's estate.

49. Daughter and I attend as witnesses to her assault charge, defence lawyer brings up whole 25 year relationship . Case to be concluded in October. Now testimony from criminal charge can be used in Family court.

50. Mother reports to kids she has rented a 3 bedroom house and will move in September, offers them to 'pick their own furniture'. Kids do not want to live with her.

51. Results of her alcohol and drug test from March still not forwarded.
  #2  
Old 08-07-2011, 11:19 PM
lorlaman lorlaman is offline
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My many questions regarding the above;

a) Since I was not legally divorced until 1999, can she claim support from 1988 when we started living together or would she only be able to claim from 1999?



b) Since I borrowed the money from my family to pay the down payment on the house, can this money be paid back from the proceeds of the sale of the house? I have all documentation for the trace of the money.



c) Since she put no money into the house either by down payment, maintenance, repairs or upkeep, can she make a claim for constructive trust? She definitely does not have any receipts or the bank show any money came from her. I can prove every paycheck and every payment made came from me.



d) I checked with my pension fund and was advised she has no claim to my pension. Can she make a claim when I retire?



e) Should I be bringing a motion forward for sole custody?



f) I cannot afford the kids extra curricular activities such as school trips, piano lessons etc., can I get her to help with these costs? She pays no CS and has the kids 0% of the time. In fact, she has told the kids I am responsible for all the money she spends on the kids.



g) Is there a possibility that she is setting up her new house to accommodate the kids by asking for custody? The kids don't want to live with her (now 12 and 15). They have been living with me since October of 2010 (defacto custody).



h) I try to encourage the kids to see her and they are continuously being let down by her. I feel I keep setting them up for a fall and they are getting tired of my constant encouragement and demands they treat her with more respect when she phones them. Should I just leave them alone and let them establish their relationship with her without my intervention?



i) Can she make a claim to any property? I have not rid the house of anything and I do want to throw away a lot of junk we accumulated to clean up the house. She has not yet asked for anything but we have not had a settlement conference yet.



J) Can I make a claim for maintenance and mortgage payments, taxes etc. towards the house since June of 2010 when we were not sleeping together and I have been upholding all the payments?



k) She has identified the separation date as Oct/2010 when she was arrested. Can I change the date to June 2010 based on question j?



l) Can I realistically ask to reduce the SS payments, since she does not see the kids, and has received a substantial inheritance of 125k? She claimed to only make $200 weekly income, but her actual client base was considerably more. She also deliberately stopped advertising in Dec of 2010 to appear impetuous (penniless) and was going to the food bank (she told the kids) instead of getting more clients or applying for social assistance. She also claimed in her financial statement her monthly expenses to be in excess of 3k, where mine shows 4k monthly with 2 kids, a 325k mortgage, taxes etc. How has she survived on 800 monthly until SS kicked in, over 6 months?



m) Can I / should I sue my first lawyer or his firm in small claims court for not properly looking after my case causing her lawyer to bring the motion for contempt of court or Parental Alienation which they abruptly dropped? Replying to the motion cost me over $3,500.



n) I'm completely out of money for legals after spending 13k and need to consider self representing. I could start borrowing against my available line of credit for my defence but cannot afford even the payments after-wards and was looking to keep it as an emergency source. I need to look after my kids first and they are my priority. What is the best way to go about this?



0) Can I retire (I have my years of service in and can draw an unreduced pension) or will the court see this a deliberate? I want to try to get a job close to home to avoid the over 1 hour commute and be closer to the kids if they need me. We live on a rural country property.



I'm sure I have more questions and really appreciate any help I can get!!!
  #3  
Old 08-08-2011, 12:23 AM
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Originally Posted by lorlaman View Post

30. October 2010, I propose marriage wondering if this is a contributing factor. She refuses proposal.
Wow now that's what I call true love.
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Old 08-08-2011, 12:32 AM
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Originally Posted by lorlaman View Post


m) Can I / should I sue my first lawyer or his firm in small claims court for not properly looking after my case causing her lawyer to bring the motion for contempt of court or Parental Alienation which they abruptly dropped? Replying to the motion cost me over $3,500.
Not sure, but I think his heart attack will probably take precedence over your marital/conjugal problems. That will play really well in court... Would be interested in hearing if another lawyer actually advises you to take that to small claims.
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Old 08-08-2011, 12:44 AM
lorlaman lorlaman is offline
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His office should have notified me and had some-one else respond on my behalf to her lawyer at least offering an explanation to the other party. Certainly, the office knew of his condition. I beleive this was severely mishandled.
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Old 08-08-2011, 09:30 AM
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Quote:
Originally Posted by lorlaman View Post
My many questions regarding the above;

a) Since I was not legally divorced until 1999, can she claim support from 1988 when we started living together or would she only be able to claim from 1999?
She can claim spousal support from the time you began living together.



Quote:
b) Since I borrowed the money from my family to pay the down payment on the house, can this money be paid back from the proceeds of the sale of the house? I have all documentation for the trace of the money.
This is a tight spot. When you borrowed the money, you should have had a legal agreement with your family detailing the payments on the loan. What this will appear in court is that your family gifted the money and you are now claiming this is a loan you "suddenly" have to pay back. If you had been making payment all along it would back up the idea that it's a loan. So unless you can totally document it, your argument looks shakey.

Generally speaking your loan is your affair, it is just your debt and nothing to do with the spouse. You are not equalizing property. The question is whether this loan will be recognized as a mortgage on the property, or just as money your family gave you. No one can guarentee a result on that.


Quote:
c) Since she put no money into the house either by down payment, maintenance, repairs or upkeep, can she make a claim for constructive trust? She definitely does not have any receipts or the bank show any money came from her. I can prove every paycheck and every payment made came from me.
You blew it when you put her name on the title. This shows intent to share the property and she has an argument for a resulting trust. These things are complex and even an experienced lawyer can't guarentee an answer. She will claim that she put labour into the house over the years. She will claim you "always promised" that you'd share the house, etc. It will come down to how well you construct your arguments, how well you can document any facts (do you have receipts for all renos still? Did the payment all come from your personal chequing account and you can get bank records to prove it? You will have to for every penny.)



Quote:
d) I checked with my pension fund and was advised she has no claim to my pension. Can she make a claim when I retire?
This is up to the rules of the pension fund. If they say she has no claim, then she has no claim. Provincial law doesn't guarentee anything to a common law spouse but the rules and wording of the pension plan will also apply, if they word it so that common law spouses are covered, then she has a claim.



Quote:
e) Should I be bringing a motion forward for sole custody?
If it were me, I would, due to the violence and mental instability. Joint custody requires communication and co-operation. You have not been operating on an ongoing basis with joint custody so there is no status quo of joint to consider. My argument would be that I have been acting with sole custody thus far, it has been working well and I have offered the ex any information regarding schooling, report cards, activities and medical issues on an ongoing basis so I have established credibility. She has been consistantly uninvolved, abusive and unco-operative. My postition would be that joint custody would result in ongoing conflict that would not be in the children's best interests.



Quote:
f) I cannot afford the kids extra curricular activities such as school trips, piano lessons etc., can I get her to help with these costs? She pays no CS and has the kids 0% of the time. In fact, she has told the kids I am responsible for all the money she spends on the kids.
You can't get blood out of a stone. You need to have her imputed an income at least minimum wage, register with the FRO for a minimal amount of child support. Each year you tally the amount you spend on section 7 expenses. You tally her share for the year, you seek a motion for her to pay. When you have a court order, you can submit that to the FRO to be reimbursed for the section 7. You will always be playing catch-up for the previous year.



Quote:
g) Is there a possibility that she is setting up her new house to accommodate the kids by asking for custody? The kids don't want to live with her (now 12 and 15). They have been living with me since October of 2010 (defacto custody).
Of course this is a possibility. The kids are old enough to have their wishes considered. They are firm and absolute about not living with mother, and you can document (and are backing up with police reports and third-party affidavits hopefully) her assaults on them. Don't worry about what some crazy ex is planning by setting up a house. Worry about the court arguments in front of you. Make your case for full custody, make your case for the kids to live with you full time, offer limited access with no overnights as per the children's wishes. The children can't be forced to spend time with mom, but you can offer some time during the day on weekends so she can take them out to lunch etc. You stress that you wish to encourage a relationship between them but cannot force the children at this age. Overnights are not appropriate.



Quote:
h) I try to encourage the kids to see her and they are continuously being let down by her. I feel I keep setting them up for a fall and they are getting tired of my constant encouragement and demands they treat her with more respect when she phones them. Should I just leave them alone and let them establish their relationship with her without my intervention?
You are their parent and you have a responsibility to guide them, you should give some encouragement but you need to be realistic too. Don't make them promises that their mum will be nice and they'll have a great time, promises you have no way of backing up. You are not under an obligation to lie, you are primarily under an obligation to not get in the way or be negative. You leave space in your own schedule of activities with the kids for mum, you let her call the kids, if they don't want to talk you don't force them. If they don't want to meet that is up to them. You remain open to requests for counselling.



Quote:
i) Can she make a claim to any property? I have not rid the house of anything and I do want to throw away a lot of junk we accumulated to clean up the house. She has not yet asked for anything but we have not had a settlement conference yet.
You mean household property? Furniture, etc? If I were her I would claim thus: You were supporting me in full, so the household budget was for both of us, so items bought for the household were mutual. I would claim that the intent was that it was "our" bed we were sleeping, not "yours", that the furniture, appliances, bedding, towels, carpets, utensils, you name it, were intended to be for both of us and that I have a claim. In effect, you are paying spousal support because you supported me all along. Not just with groceries and roof over my head, but clothes to wear and furniture to sit on. I have a rigth to half the furniture just as much as I have a right to my clothing. That would be may argument. Now you construct your counter argument.
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Old 08-08-2011, 09:30 AM
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J) Can I make a claim for maintenance and mortgage payments, taxes etc. towards the house since June of 2010 when we were not sleeping together and I have been upholding all the payments?
No, because the house is unlikely to be a simple 50/50 split. It depends on what you are seeking.

If it were me, because the house is also in her name I would offer her 50% of any gain in value of the house since purchase, to the date of separation. If you want to claim she pays a share of mortgage, insurance, taxes etc since separation, then she should have been paying it all along, you can't have it both ways. If she was paying all along (through the ongoing support you were giving her as your spouse, essentially every payment you made was 50% on her behalf) then she gets 50% of the full value of the house.

You should see that this can be an accounting nightmare. Your best bet is offer a settlement for the house with reasoning as to what her share is. Don't make it complex by trying to charge her for payments after she left.



Quote:
k) She has identified the separation date as Oct/2010 when she was arrested. Can I change the date to June 2010 based on question j?
She returned to the house after her peace bond, you let her back in, she lived there. The separation date should be based on Oct/2010.



Quote:
l) Can I realistically ask to reduce the SS payments, since she does not see the kids, and has received a substantial inheritance of 125k? She claimed to only make $200 weekly income, but her actual client base was considerably more. She also deliberately stopped advertising in Dec of 2010 to appear impetuous (penniless) and was going to the food bank (she told the kids) instead of getting more clients or applying for social assistance. She also claimed in her financial statement her monthly expenses to be in excess of 3k, where mine shows 4k monthly with 2 kids, a 325k mortgage, taxes etc. How has she survived on 800 monthly until SS kicked in, over 6 months?
You are overcomplicating and going in the wrong direction.

You seek to have her imputed a reasonable income based on what she is capable of earning. This income applies to CS and it applies to spousal support calculations. Your arguement starts with what the normal rate would be for house cleaning which you support with evidence like pay rates you pull of monster.ca and ads in the paper for housecleaning services. The second layer of evidence may be some of the things you suggest to suggest she is deliberately underemploying herself, but you should frame this as a sub-argument, AFTER you have shown the reasonable, actual amount she should be able to earn as a house cleaner.



Quote:
m) Can I / should I sue my first lawyer or his firm in small claims court for not properly looking after my case causing her lawyer to bring the motion for contempt of court or Parental Alienation which they abruptly dropped? Replying to the motion cost me over $3,500.
Your lawyer should have had liability insurance covering situations that would come up if he fell ill. You can call the Law Society and get information about this, and you can also (do this separately) call and get a free one hour referral to a civil claims lawyer and get advice on this claim. Then decide if you want to go to small claims.



Quote:
n) I'm completely out of money for legals after spending 13k and need to consider self representing. I could start borrowing against my available line of credit for my defence but cannot afford even the payments after-wards and was looking to keep it as an emergency source. I need to look after my kids first and they are my priority. What is the best way to go about this?
Consider self-rep to be your full time job. Spend half of your time in the library and the other half in the courthouse. Ask questions. Attend court sessions. Read everything you can on how to write up the arguments and what facts are relevent and admissible.



Quote:
0) Can I retire (I have my years of service in and can draw an unreduced pension) or will the court see this a deliberate? I want to try to get a job close to home to avoid the over 1 hour commute and be closer to the kids if they need me. We live on a rural country property.
You appear to have sound reasons and would be seeking other employment. You have to present things this way. No one can stop you from retiring, and now you are a single parent so that should be emphasised. The question is whether you would be imputed a wage at your old pay scale.
  #8  
Old 08-08-2011, 09:32 PM
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Thanks for the great advice Mess! Always look forward to your input; good or bad!

a) Since I was not legally divorced until 1999, can she claim support from 1988 when we started living together or would she only be able to claim from 1999?

She can claim spousal support from the time you began living together.

I read a post by 'littleman' who is certain that a common law relationship cannot start until a legal divorce is granted. She describes herself as "living proof" and straight from her lawyer. Any comments, ideas? I have not been able to verify this. Littleman has not been on line in some time and didn't answer a pm I sent her.
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Old 08-08-2011, 09:39 PM
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b) Since I borrowed the money from my family to pay the down payment on the house, can this money be paid back from the proceeds of the sale of the house? I have all documentation for the trace of the money.

This is a tight spot. When you borrowed the money, you should have had a legal agreement with your family detailing the payments on the loan. What this will appear in court is that your family gifted the money and you are now claiming this is a loan you "suddenly" have to pay back. If you had been making payment all along it would back up the idea that it's a loan. So unless you can totally document it, your argument looks shakey.

Generally speaking your loan is your affair, it is just your debt and nothing to do with the spouse. You are not equalizing property. The question is whether this loan will be recognized as a mortgage on the property, or just as money your family gave you. No one can guarentee a result on that.

I have an IOU written and witnessed for 100k from my brother and his wife. Terms are repayment at 0% interest and money hopefully to be repaid by the settlement of the legal action for the investment loss in #5. Failing that, a number of other repayment options ending in direct repayment from any inheritance from my parents. (Dad passed away in Jan of 2011, mom still fine thank God). The other 50k came from parents, same terms but no written IOU. However, the 50k is identified in their will dated mid 2006.
  #10  
Old 08-08-2011, 10:46 PM
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Quote:
Originally Posted by Mess View Post

You blew it when you put her name on the title. This shows intent to share the property and she has an argument for a resulting trust. These things are complex and even an experienced lawyer can't guarentee an answer. She will claim that she put labour into the house over the years. She will claim you "always promised" that you'd share the house, etc. It will come down to how well you construct your arguments, how well you can document any facts (do you have receipts for all renos still? Did the payment all come from your personal chequing account and you can get bank records to prove it? You will have to for every penny.)
I did all reno's myself, never hired anyone. I have paid every bill, mortgage payment, car parts, repairs, groceries, you name it. All my money went into a joint account and left the joint account. She contributed nothing. Does this not count for something? You would think that she would have an obligation of some sort, at least, to advance her education. She did absolutely nothing despite our mounting debt(s). I always improved my education in order to land better paying jobs in my organization. She only started working when she was forced to (when I cut off her access to the account) and then, kept every penny she made. Would the judge not see this as unreasonable?
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