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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 02-21-2010, 12:26 PM
averytiredman averytiredman is offline
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Default i need help

I have been separtated for almost 2 years now. I have tried talking to my common law wife about how we are going to deal with things and she keeps brushing it off in a not very nice way. We have a son together and I am paying child support, he spends every second week with me. The big problem is all the debt we incurred while we were together. We own a house together but she refuses to sell it. All I want is to settle this. I want the house sold to pay debts and so that we can start new lives. I have already spent $4000. on a lawyer who did nothing for me. She has legal aid. I cannot afford my lawyer any more and i do not qualify for legal aid( but cannot afford anything because of the debt ) I have to do everything on my own now. Any one have any suggestions. I am at my wits end.
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Old 02-21-2010, 01:06 PM
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NBDad NBDad is offline
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Quote:
We have a son together and I am paying child support, he spends every second week with me. The big problem is all the debt we incurred while we were together. We own a house together but she refuses to sell it. All I want is to settle this. I want the house sold to pay debts and so that we can start new lives
Who is currently living in the home? Whose name is the mortgage in? The title? Who has been making the payments? How did you purchase the home to begin with? Can you prove all of that?

Basically if it's a matrimonial home, she needs to buy you out of your half (by getting a mortgage in only her own name) or you need to come to some sort of arrangement where you get ~ 50% of your share of the home out of it. The court can order the home sold if necessary. Have you looked into mediation or arbitration to settle this?

At 2 years +, there is established status quo in effect for your custody arrangement. Do you have your child 50%? Not sure if you meant every other weekEND or every other week. You said week, but I want to confirm that's correct.

Who is currently collecting the CCTB and UCCB?

Who has been claiming the child as equivalent to spouse on the income tax?

(with 50% access, you are entitled to CCTB/UCCB 6 months of the year, it will increase your GST payment slightly for 1/2 the year, and you should be able to claim the child as equivalent to spouse on your income tax at least every other year.) It's not a lot, CCTB/UCCB adds up to a couple hundred a month usually, but it's something if you aren't getting it already.

Also are you paying table amount of support or offset table amount for support? With 50% you should only be paying offset. (assuming you make more money)
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Old 02-21-2010, 01:47 PM
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Excellent advice NBDad. Just to mention, he probably doesn't know what offset would mean, I think most of us didn't at the beginning.

If you have the child between 40% and 60% of the time, Child Support is calculated by subtracting what one spouse would pay, according the the Tables, from what the other spouse would pay.

If your ex isn't working, or only working part time, it's usually possible to get an income of at least minimum full time wage imputed to them. The courts will never accept an income of "0".

You should be splitting "Section 7" expenses proportionately according to your incomes. These expenses, rule-of-thumb, are usually if they are tax-deductable. Day Care, Summer Camp, sometimes sports teams (especially if you could argue they lead to a possible scholarship later, or some kind of vocation like coaching.) This split can be incorporated into your CS calculations, or can work out a budget and pay them separately, whatever is more convenient or less arguing.

Regardless if she has legal aid, she can't break the law. Total up the debt accumulated during the marriage, and estimate the value of the house and any other savings and investments. Get a ball park figure. (You can do a full accounting later).

Here is what I would do:

Write a letter to her lawyer, at the top write "Without prejudice" and "For the purposes of negotiating a legal settlement Tiredman v Tiredman" In simple terms, write that you feel that the equalization should be appoximately $xxxxxx.xx due to the value of the home, various other assets, and the family debt.

Write that you would be happy to complete an accurate financial disclosure to come to an exact figure, or you would also be happy to negotiate a settlement based on your estimate which would save both parties considerable time and expense.

Write that you feel one party should immediately buy out the other for the value of the matrimonial home (make sure you word it "Matrimonial Home") or else the home should be sold and the assets equalized. Write that you encourage the lawyer to seek their client's preference on this and to reply ASAP.

Write that after a 2 year period, the child is thriving in the current access arrangement and you do not accept any change to the status quo would be in the child's best interest. You feel that both parties would benefit from the security of a formal agreement on this.

Write that you feel Child Support should be at $xxx.xx per month, based on Offset of the Child Support Table amounts based on each party's income. You can ask us for help in calculating the offset amount.

Close that you look forward to amicable negotiations to settle this quickly and reasonably.

Ideally this type of letter should get things moving. It may end up that you have to file, you may have to hire another lawyer, it's hard to say, but if you can coax them to negotiate and settle quickly you are both better off.
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Old 02-21-2010, 02:41 PM
averytiredman averytiredman is offline
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Thank you both for your quick responses. She is currently living in the house and the mortgage is under both our names. She has been making the payments since i have to pay for my own place to live. I could not afford to pay for both. She recieves the CCTB, she has always claimed our son on her taxes. She also always filed as single. As for custody of our son he is with me for 1 full week, then with her 1 full week. As for mediation or arbitration. I am not sure how to go about that. This is all very new and confusing to me. We live in a small town and alot of services other than lawyers are not available.
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Old 02-21-2010, 03:19 PM
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Quote:
She recieves the CCTB, she has always claimed our son on her taxes. She also always filed as single. As for custody of our son he is with me for 1 full week, then with her 1 full week.
At some point you are going to want to go and file for CCTB/UCCB. You do NOT need her signature. I would personally hold off on this until you have a firm order in place. It tends to be a tad inflammatory, which is NOT what you need right now.

Also at some point, you want to approach her about YOU claiming the child on the taxes too. (Ideal situation is trade off years). She may not want you to, it's potentially a few hundred to a few thousand worth of extra income. You can still file, as can she. End result is that neither of you will get it. Repeat as necessary until she agrees to a schedule. (CCRA will take the view that if you don't agree, neither of you get it).

Yes, it's a bit of hardball, but sometimes that's what it takes.

Again, hold off on that until you have the rest of it signed off from the courts.

Start off by doing what Mess said. The without prejudice part simply means she can't use it against you in court, though if she drags it that far and you've made reasonable attempts to settle you could be awarded costs. (for her wasting the courts time).

Ideally you want to wind up with the following:

1. Your name off the mortgage. (You need to figure out whether the amount of equity you have invested in it is worth fighting about. Only you can make that decision. You can either fight over the equity, or cut your losses and settle for her getting your name off the mortgage) Pick one. Be aware once you decide to settle for your name off the mortgage, you are very unlikely to be able to reverse that.

End result is you NEED to get out of bed with her financially.

2. A signed custody order (use the words SHARED custody, and spell out week on week off access as per established status quo)

3. Clause in there that the two of you exchange income tax returns every year, with support paid based on "offset table amounts" with a July - June payment schedule.

4. That you each pay a proportional share to income of special expenses.

You probably want to do as much leg work as you can for yourself in terms of getting an agreement made through her lawyer. Then once you have everything hammered out, take that information to a lawyer (pay for an hour or two of time) and get them to read over it and see if there are any changes they can recommend.
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Old 02-21-2010, 03:31 PM
JDaddy JDaddy is offline
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averytiredman,

I just joined this forum but I'm not new to the separation theme. I have been separated for 7 years and have been in a similar situation as yours. Considering that we were married for only 7 years, and we've been trying to make our separation official for just as long, I'm sick and tired of this whole thing.

We have 50/50 time with our two children and she is still living in the matrimonial home which is in both our names. I won't get into the details of why we separated (for another post) but will say that it was her doing and her decision. When I moved out, the house was completely furnished and completely paid for. I also left her with paid family vehicle. Initially, I had to rent a two-bedroom apartment and was still paying the second family vehicle. I am now paying a mortgage. The only this she had to pay for, for all this time, was the utilities and taxes.

After years of failed mediation and back and forth with lawyers, we are finally going to settle this in court. I finally got (I hope) a good lawyer who will put an end to this. In my case, since the house was paid for when we separated, my lawyer is asking for occupational rent (+ interest) for the last 7 years. This is only fair, since during the same period I had to pay for rent, and now my own mortgage.

The value of the house has also increased so I will be entitled to that as well. (In your case, that may be different since you indicated that you have not been paying for the mortgage).

I'm not sure the above helps you, but there is something else that I would like to point out with respect to CS in cases where the parents have 50/50 custody. There is a grave but simple mathematical error that lawyers in Ontario make about calculating the amount that should be paid by the parent that makes more money. What one should pay is not the full difference of the Table amounts but half the difference! Quebec does it correctly.

It is very simple, say, for your salary and number of children, your Table amount indicates that you shoud pay $1000 per month and, for your wife's income, the Table amount is $500 per month. This means (based on the numbers in the Table) that you and your wife should contribute a total of $1500/month in the pot, for the carring of your children. If you have 50/50 custody of your children then both of you should divide the pot in half, giving both households (in this case) $750/month. Since you contribution to the pot is $1000, you should give $250 (half the difference between your amount and your wife's amount) to you wife and not $500 as the lawyers would have you believe.

If the above is not convincing enougn, assume that your wife has no income ($0) so that her contribution to the pot is $0/month. Since your contribution is $1000/month (which would be the amount that you would have to pay if your wife had sole custody), using the full difference would have you give $1000/month but if you have 50/50 custody that leaves you with nothing. The correct approach would be to give her half the difference, $500. This would also leave you with $500. This is called the pro-rated setoff approach. If you have 50/50, you should fight for this.

If you read summaries of case laws across Canada (Quebec excluded) you will find that some judges have applied this approach, mainly when the mother makes more money than the father. Go figure!

JDaddy
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Old 02-28-2010, 02:41 PM
scoobydoo scoobydoo is offline
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IANAL and this applies AFAIK to ontario only. But there is no such thing as a matrimonial home under common-law. If both contributed to the aquisition of the home and payment of the mortgage then it becomes joint property whether the other is on the deed or not. Not sure what happens if only one contributes but the other is on the deed as well. If only one contributes and the other is not on the deed then its not joint property and does not get divided.

If the lenght of the common-law relationship is significant then a constructive trust argument might possibel. 2 years is not significant.

Other provinces may be different. Remeber common-law relationships are govereed by provincial statutes only.

So the question for the original poster is who paid the mortgage while you were together. What happened after since she paid the mortgage completely is different.
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Old 02-28-2010, 08:01 PM
averytiredman averytiredman is offline
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Thank you all so much. I have my work cut out for me. I have one question though. IF all the papers have been filled out by my previous lawyer ( the one i cannot afford anymore) and i have already been to court a few times, how do i get another court date? I know she will not push the issue because she is getting what she wants by staying in the house. I am just so puzzled by all of this. Once again thank you all. I really do appreciate it.
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Old 03-27-2010, 07:30 PM
averytiredman averytiredman is offline
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I paid the mortgage up until we separated. I could not afford to pay the mortgage and rent and our debt and child support.
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