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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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  #1  
Old 09-08-2009, 11:15 PM
Gren Gren is offline
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Default Thinking of moving in...what are implications for property?

Hi,

I just bought my first house (in Ontario) about 3 months ago. I bought everything on my own, I am the sole owner. My boyfriend and I are talking about having him move into my home with me. The arrangement we were thinking of was that I would charge him part of the mortgage (less than 50%) and then half of the utility bills.

I am trying to find out what happens if, after living together for 3yrs and becoming common-law, we unfortunately end up going our separate ways. What happens to my house? Do I get to keep it because it's in my name? Does he get to claim anything at all? Is there some form of unjust enrichment that he can come back and claim?

Advice would be appreciated!

Thanks!
  #2  
Old 09-08-2009, 11:58 PM
dinkyface dinkyface is offline
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My understanding is no, assuming that he did not contribute more than what can be considered as reasonable shared living expenses.

Maybe if you are paying off your mortgage at an accelerated rate, then he could claim he contributed more than just expenses, and had built his own 'equity' in your house.
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Old 09-09-2009, 12:21 AM
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I would be open with him about your posing questions here and document your research here and perhaps get an agreement in place that he knows he is only paying rent, not taking part in the investment in the house (both the potential risk and reward).

And as such, I would not charge him 'part of the mortgage' but rather 'half the rent value of the home', or simply 'rent', subtle but it makes things clear.

He pays half the utilities is good. He does not pay upkeep nor property taxes. Keep it simple, it is your house and he is a tenant.
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Old 09-09-2009, 07:10 AM
Stargate Stargate is offline
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From the standpoint of the state common-law is the same as being married and the same rules apply meaning if you live together under the same roof as a couple after a 3 year period he will have claim to half your property/house and all other assets (and liabilities) you have regardless whether or not he paid a dime towards any common expenses.

Get a prenuptual agreement.
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Old 09-09-2009, 09:26 AM
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Quote:
Originally Posted by Stargate View Post
From the standpoint of the state common-law is the same as being married and the same rules apply meaning if you live together under the same roof as a couple after a 3 year period he will have claim to half your property/house and all other assets (and liabilities) you have regardless whether or not he paid a dime towards any common expenses.
I don't think this is true. At the least you retain what you brought into the relationship, there is no 'matrimonial home' as there is with marriage. He may be entitled to half the gain of value of the assets (and debts) during the relationship...can anyone comment on this?
  #6  
Old 09-09-2009, 09:36 AM
Stargate Stargate is offline
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Common Law Separation Canada FAQs

"What is a common law relationship?"

A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or of the opposite sex. No legal formalities are required.
"How long do we need to live together to be considered common law spouses?"

It depends on whether the issue is federal or provincial, and in what province you live. Federal issues include items such as federal government pensions and division of the Canada Pension Plan upon separation. Property division is determined by provincial law and each province has its own definition of what a common law spouse is.
For Ontario family law purposes, you must cohabit 3 years, or have a child and a relationship of some permanence.
In British Columbia family law, you must cohabit 2 years in a marriage-like relationship.
Under New Brunswick family law, you must live together continuously in a family relationship for 3 years and one person must be substantially dependant on the other for support, or, where the couple lives together for one year and has a child together.
In Nova Scotia, you must live together for two years.
Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months. As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.
"How do the courts determine what cohabitation is?"

Generally, a judge will look at the lifestyle of the parties in a common law relationship. The normal test used is the one set out in the Canadian case of Moldowich v Penttinen, which sets out the following 7 factors:
1. Shelter - did the unmarried parties share accommodation;
2. Sexual and Personal Behaviour - did the unmarried parties maintain an intimate interdependent relationship and were they so perceived by others;
3. Services - did the common law couple share the traditional functions of a family;
4. Social - did the unmarried couple portray themselves as a couple to the outside world;
5. Societal - how were the common law partners treated by their community;
6. Economic Support - were the unmarried parties economically interdependent; and
7. Children - did the unmarried couple see children as part of their home and interact parentally with each others' children.
"Can dating or an affair be considered cohabitation?"

Sometimes, yes. It really depends on the facts of the case. For instance in the Canadian case of Thauvette v Malvon, the common law parties had a 3-year relationship. During this time, they maintained separate residences. However, the man helped the woman purchase her home, and spent 4 or 5 nights per week at her home. The court found that the man and woman were cohabiting.
"At one time during the 3 years my partner and I were in a relationship, we broke up for a few months. Are we still considered to have cohabited for 3 years?"

Maybe not - it depends on the province. The Ontario Family Law Act requires 3 years of CONTINUOUS cohabitation for there to be a common law relatioship. An interruption in the 3 years can destroy that continuity. It really depends on the particular circumstances of the breakup. If you simply needed time apart and were trying to work things out, then a court will probably find that your relationship was continuous. If there was an intention by either party to end the relationship permanently at the time of the breakup, then a court will probably find that your relationship was NOT continuous.
In British Columbia, there is no requirement of continuity.
"If I live with my partner for long enough, will we be considered married?"

No. There's no such thing as common law marriage in Canada.
"If I'm in a common law relationship, do I need to obtain a divorce?"

No. Your relationship is over when one of you says it's over.
"I'm involved in a common law relationship. Is there any way I can have the same benefits as a married person?"

Yes, by entering into a cohabitation agreement.
  #7  
Old 09-09-2009, 09:43 AM
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Quote:
Originally Posted by Stargate View Post
Common Law Separation Canada FAQs

"What is a common law relationship?"

A common law relationship is when two people live together in a marriage-like relationship. The two people can be of the same sex or of the opposite sex. No legal formalities are required.
"How long do we need to live together to be considered common law spouses?"

It depends on whether the issue is federal or provincial, and in what province you live. Federal issues include items such as federal government pensions and division of the Canada Pension Plan upon separation. Property division is determined by provincial law and each province has its own definition of what a common law spouse is.
For Ontario family law purposes, you must cohabit 3 years, or have a child and a relationship of some permanence.
In British Columbia family law, you must cohabit 2 years in a marriage-like relationship.
Under New Brunswick family law, you must live together continuously in a family relationship for 3 years and one person must be substantially dependant on the other for support, or, where the couple lives together for one year and has a child together.
In Nova Scotia, you must live together for two years.
Under Federal law, you can request a division of CPP benefits if you have lived together for 12 consecutive months. As well, if you have lived together for 12 consecutive months, the same income tax rules apply to married and unmarried couples.
"How do the courts determine what cohabitation is?"

Generally, a judge will look at the lifestyle of the parties in a common law relationship. The normal test used is the one set out in the Canadian case of Moldowich v Penttinen, which sets out the following 7 factors:
1. Shelter - did the unmarried parties share accommodation;
2. Sexual and Personal Behaviour - did the unmarried parties maintain an intimate interdependent relationship and were they so perceived by others;
3. Services - did the common law couple share the traditional functions of a family;
4. Social - did the unmarried couple portray themselves as a couple to the outside world;
5. Societal - how were the common law partners treated by their community;
6. Economic Support - were the unmarried parties economically interdependent; and
7. Children - did the unmarried couple see children as part of their home and interact parentally with each others' children.
"Can dating or an affair be considered cohabitation?"

Sometimes, yes. It really depends on the facts of the case. For instance in the Canadian case of Thauvette v Malvon, the common law parties had a 3-year relationship. During this time, they maintained separate residences. However, the man helped the woman purchase her home, and spent 4 or 5 nights per week at her home. The court found that the man and woman were cohabiting.
"At one time during the 3 years my partner and I were in a relationship, we broke up for a few months. Are we still considered to have cohabited for 3 years?"

Maybe not - it depends on the province. The Ontario Family Law Act requires 3 years of CONTINUOUS cohabitation for there to be a common law relatioship. An interruption in the 3 years can destroy that continuity. It really depends on the particular circumstances of the breakup. If you simply needed time apart and were trying to work things out, then a court will probably find that your relationship was continuous. If there was an intention by either party to end the relationship permanently at the time of the breakup, then a court will probably find that your relationship was NOT continuous.
In British Columbia, there is no requirement of continuity.
"If I live with my partner for long enough, will we be considered married?"

No. There's no such thing as common law marriage in Canada.
"If I'm in a common law relationship, do I need to obtain a divorce?"

No. Your relationship is over when one of you says it's over.
"I'm involved in a common law relationship. Is there any way I can have the same benefits as a married person?"

Yes, by entering into a cohabitation agreement.
Okay, so this disproves your previous post...common law is not marriage and property/asset/debt division is handled differently.
  #8  
Old 09-09-2009, 09:46 AM
dinkyface dinkyface is offline
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So 95% of Stargate's FAQs copy/paste deals with 'are we common law or not'?

The last sentence refers to the fact that for someone to have a stake in the matrimonial home, an ADDITIONAL legal contract is required.
  #9  
Old 09-09-2009, 10:42 AM
B00kWorm B00kWorm is offline
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I suggest a cohabitation agreement. Like most here, if we had the hind-sight of 20/20 - we may have done just that.

Count yourself lucky. You have fore-sight of 20/20 by reading some of the posts here!

Hope it doesn't happen to you, but if it does, you would be ready for it!

My 2-cents.
  #10  
Old 09-09-2009, 06:49 PM
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I would have to agree that no your partner is not entitled to any value in the home even you meet the criteria as common law, you do not acquire any right to the others property, only if married would that change, one of the subtle differences between common law and married.
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