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  • Help! Advise Please

    I've owned my own house for 5 years in Ontario and my girl friend has recently moved in, we have been living together for 9 monthes and are expecting a baby girl in February and are now in a common law relationship but have been having shaky times of late and I think we are both worried about the future. We've been having some difficult times of late but are sticking together and trying to work them out We're both strong minded people and neither of us will simply get married just because we're having a child unless it's the right thing to do with each other and at the same time we both are anxious to be parents and share the joys of raising our daughter together or sharing the responsibility separately.

    A little more history, Only my name is on the house I put all the money down on it well before we met and still pay all the mortgage, taxes, and bills. We both have middle income salaries coming in. As she's handcuffed with a massive student debt. She provides me with about 500 in rent a month.

    My 4 questions are if the unfortunate happens and we separate, as common laws what's the worse that can happen below if we can't mutually agree and it goes to courts for both us fighting for everything?

    1) What happens to our baby, my preference is to have full custody and/or joint but I'm worried she will by default get it? What happens usually here, as human beings we're both good people and I think either would make excellent parents.

    2) I've invested alot into my house and obviously would like to keep everything I sacrificed and worked hard to put into it. I believe she should be re-imbursed for money she puts into it but I am not sure what she can get from it? Even if she's not paying and the value of the hosue goes up each year is she entitled to a portion of that if she's not paying?

    3) What happens to possessions we each own before/during the relationship? I'd like to be able to keep everything that was mine beforehand but am completely open to splitting what we put together or even willing to give more.

    4) What happens with our individual RRSPs/Pensions?

    Thank you for taking time to help me out or read my post.

  • #2
    Hi duhdanny,

    Welcome to the forums. Using your numbering:

    1. Each parent has an automatic right to joint custody upon separation. However, it's possible that status may change depending on many factors. In determining custody, a judge would take into consideration whether it was you or your spouse (or both) who was the primary caregiver, where the child has been living since the date of separation, the time you and your spouse spend with the child during access, etc. If you are an active, loving parent (which I'm sure you will be) and if you believe your spouse will feel the same way you do about joint custody, hopefully this won't be an issue.

    2. Your spouse will not get an automatic right to your house upon separation. In a marriage, each party has an automatic 50% in the matrimonial home no matter who owns it. This is not the case in common law relationships. However, your spouse does have the right to bring a claim of unjust enrichment to obtain an interest in your home. In other words, if she contributes to household expenses, renovations, etc., a court may agree that she is entitled to a certain percentage of the value of the home as a result of her contributions.

    3 and 4. Anything you owned (assets and debts) before your relationship will remain yours upon separation. Any property solely owned by you after the commencement of your relationship will also remain yours only. Property jointly owned by you and your spouse will be shared equally. Please note, however, that your spouse may also bring a claim for unjust enrichment in regards to property such as bank accounts, RRSPs, pensions, etc. She may argue that, for example, her career suffered so that yours could advance and, as a result, she should be entitled to a percentage of your pension. You may also bring such claims as well.

    Unjust enrichment is difficult to prove. This is especially so with a relationship as new as yours. While your spouse may be entitled to spousal support as well, this will likely not be an issue since you will technically only become common law once the baby is born. Also, the fact that you have similar incomes would likely cancel out any possibility of spousal support.

    I hope things work out between you and your spouse. Congratulations on your upcoming bundle of joy!

    Lindsay

    Comment


    • #3
      Thank you

      Thanks Lindsay for wishing us well and your advice has helped me immensely and I'm amazed what an excellent resource site this is as I've had alot of difficulty searching the web for answers until I came here. My main concerns were seeing what I could possibly lose if things go sour. I'm a fair guy and have no problems with her being compensated for the property etc on what she invests into it and other shared properties, I was hoping you could expand on 3 things though.

      1) In the unfortunate event of us separating my spouse is going on maternity leave for 6 monthes while I keep working as I don't really have much of plan in my industry for that which is out of my hands with spending fair time with the baby, can that be used to say she's spend significantly more time with the child than me and weigh in on the courts ruling?

      2) When you mentioned my spouse contributing to household expenses, renovations I'm a little confused about the household expenses? As I pay the bills, property tax, mortgage myself do they factor in other things? such as buying food, basics, contributions around the house such as chores etc.

      3) Also when these common law issues take into effect where we have to split some issues in the unfortunate event of a separation, do they take into consideration dividing the time up since we moved in together or after that when we became common law? more if my spouse is looking for a percentage of my savings or RRSP's or property can they only factor in the amount put in and growth while we're together or for all of it even if most of it was done before we moved in?

      Comment


      • #4
        Hi duhdanny,

        There is certainly nothing wrong with being prepared, just in case, especially when children are involved. They must always come first

        1. Possibly, but I think a judge will consider that it wasn't your choice to not spend the same amount of time with the new baby as your spouse did on her maternity leave. In fact, I suppose you could argue that your time was being spent on earning an income for the child. I think the real question would be whether you spent time caring for the child when you were able to. In a lot of child custody disputes, the children involved are several years old and as such it's much easier to establish which parent was the primary caregiver, who was involved with the children's activities, how the parents spent their spare time with the children, etc. But, with a new baby, it going to be a lot more difficult to determine these factors. If you do separate, I suggest you make sure that exercise the joint custody that you are entitled to. Your baby is as much yours as it is your spouse's.

        2. Minor contributions to the house such as doing the household chores do matter, but contributions like this would probably only be useful as support for other major contributions being claimed. I can't see a judge allocating some-odd percentage of the value of a house to a common law partner just because he/she did the vacuuming. Your spouse does pay rent, however, and the court could consider this to be a contribution to the mortgage. IMO, based on what you've told me, if your spouse was to argue any kind of unjust enrichment, her claim would primarily be based on her rent payments.

        3. Although you will not be attaining common law status until the baby is born (or, if without children together, after three years of continuous cohabitation), any claim for property would go back to the commencement of the relationship, because that is when you and your spouse started physically living together.

        I just want to reiterate that your spouse does not have an automatic interest in your property. In fact, with such a short term relationship, I doubt your spouse would proceed with an unjust enrichment claim, especially if you are more than willing to reimburse her for her contributions. But, if she did choose to proceed with a claim against, say, your RRSPs, I think it would be extremely unlikely that she would succeed. You have only lived together for 9 months, which, IMO, is not a lot of time to substantially build your RRSPs. But, that's my personal opinion. A judge's opinion could be very different!

        While these forums are an excellent source of information, if you really aren't feeling 100% confident about what your rights and obligations are upon separation, please schedule an appointment with a lawyer.

        Lindsay

        Comment


        • #5
          Thanks again

          Hi Lindsay,

          Thanks again for all your advice and you've quelled alot of worries/concerns of mine. LOL Now time for me to stop worrying about this and move on with things, again your help was much appreciated. My legal knowledge of this was mainlygoing on the basis of nightmare divorce or separation stories I hear from friends and colleagues and was looking for some answers which you greatly helped me out on and gave me some piece of mind that all is good no matter what happens.

          Comment

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