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  • Toronto/Ontario - Common law separation - what if

    I'm curious of the following scenario.

    Lived together for close to 3 years, as soon as partner moved in she got pregnent and we have a child who is 2. Things are not going so well and I think a separation is imminent. I have some questions concerning divying up house, spousal support and child custody. I know nobody can give me a definitive answer I'm more looking for typical scenario range of what can happen for each.

    Some more background, I own the house and purchased it before we even met so it's solely under my name, during our relationship I paid for the entire mortgage, property tax's, and all the household bills (I was adamant that stayed that way so it wouldn't come back to haunt me later). She has invested about $2500 into the house for the odd upgrade/cosmetic change. I make about $6000 more than her a year in salary, ie 55ish to my low 60ish salary. As for child we both love her very much, I feel I spend more time with her, I drive her to daycare, feed her all her meals, give her a bath each night, read/play with her more, take her out more to the park and swimming pool, etc. Our daughter has been in daycare for a year and she has paid the $800/month or so for it.

    If we separate, I don't want this to get ugly at all and I will try and be as accomodating/ammicable as possible as I expect she will but... you never know. My questions are:

    1) Child Custody
    I'm off the believe that if both parents are capable, then both should get joint custody upon separation as I both believe we are and are both capable. I'd love to have full custody but would be willing to share. In this day and age, what typically happens is it more joint-custody or is it like it was many years ago when the mother typically won full custody by default? I feel I can make every argument in the world why I should be considered. Also if they do joint-custody? what procedure is in place to handle arguments (ie on what school the child should goto etc? Is their a 3rd party that gets the final say if we approach them or is one parent assigned the main decision maker?

    2) Dividing up assets?
    -Most of the furniture in the house I owned before our relationship, she brought in some of hers as well, I presume we keep our own respected pieces? I have receipts for most of my items
    -House, as it is in my name and I owned it before, I understand typically it stays mine however she can make a claim for unjust enrichment and take back what she has invested? I have no problem giving her back any value she's invested into the house (ie the $2500, i don't think she can prove any of it but I'd be honest and agree to it)? Can she also claim back half what she put into daycare? Approximately what can I expect to have to return here? I also find it frustrating as I put more into things and did all the hardword to get the house and keep it paid, that she can recoop anything she invests yet I can't get any extra back that I do. Ie when one is spending $1800/month on bills/mortgage for almost 3 years. and for 1 year she was paying $800 seems quite frustrating that I have to re-imburse even though I carried the load.

    I'll also add that in our relationship, anytime we went over budget, or had to tackle an emergency it all got dumped onto my credit. After 2.5 years and accumulating close to 15,000 in credit, I had to transfer it onto my mortgage to pay it off? would this sacrifice also be considered? I know their will be some balancing out on a separation but it's quite frustrating that I would be worse off now than I was before I met her whereas she would be much better off at my expense.

    3) Spousal Support
    As our salaries are fairly close middle income earning salaries, I make low 60's, she makes approx 55-56k. Would the judge award spousal support for a small difference in salary, I would have a hard time with the principal of this one, even if it's such a miniscule amount. (it would literally be $100 cheque a month i think to balance it out). I'd be more than willing to move forward and let her keep the $100/month cheque we get from gov't til our daughter is 7, and let her keep all the daycare receipts/tax claims (2000ish plus each year on tax return) to help disuade her from persuing or getting spousal support.

    Another factor in this is she has no career aspirations beyond what she does whereas I do, I have to move forward and get a promotion but this is where I'd really take exception to this if I had to pay her spousal support. I understand the principle behind spousal support (ie dependant on the other person's salary, or if one parent stays home they look at it as they had the potential to make money which was lost with their sacrifice to stay home) In this case... we both have our careers and the exact same jobs when we entered our relationship and when/if it ended.

  • #2
    Zed,
    Don't give anything away yet. First, find out how friendly this separation is going to be.
    Since your incomes are close there would be no SS but you probably will pay CS. Your chances of getting sole custody are slim.Only then would you pay no CS. If your income climbs a lot you could face SS but it would be time limited due to the short length of the relationship.
    She has no claim on the house except by constructive trust. She would have to prove she spent money on or worked on the house to improve it's value. Common law relationships do not provide the bonuses that marriage does. If you had married, the value of the house would have been split. You lucked out.

    FN

    Comment


    • #3
      Thanks for the reply and clarifying some issues.

      What about child support? I understand I would willingly pay that if she got custody but if it were joint custody would I being paying child support? Was wondering what typically happens for custody in most situations if both parents are capable parents.

      Comment


      • #4
        The courts would deem one location the 'primary' as this is needed for things like the child's OHIP card etc. This will all depend on the schedule that you both work out for the child, and to remember that things will likely have to be adjusted when the child starts school.
        Even if there is a 50/50 split, each parent is responsible, thus the parent with the higher income will have to pay some sort of CS - though not based fully on the table amount. Again, this is something that you two may very well be able to decide upon if the split is amicable.
        You would (and should) also be responsible for a portion if 'section 7' expenses such as daycare, medical, dental, and other types of activities, so expect that you will have to provide monies towards this as well. Also remember that things such as the child tax benefit in some custody arrangements mean that one parent receives the benefits for 6 months, then the other for the next 6 months. There is no system in place to share this month to month, so again, if amicable you may very well work it out amongst yourselves where one gives the money to the other on alternate months during their 6 month of receiving the benefits.
        Basically - the child should benefit (if possible) from the same things after a relationship breakdown that they would have benefited from had the relationship remained solid. Sadly this is not always the case, but if you are able to do as such, then you should.

        Best of luck!

        Comment


        • #5
          Zed,

          Basically, you're in the early stages where your next decisions could be critical. One of the most important questions will be how the issues will be resolved.

          If you and your ex hire litigators, depending on who they are, the situation can begin to get out of hand quickly. Before you know it, you'll have the Cuban missile crisis on your hands.

          But if you can cooperate reasonably, consider collaborative divorce. You both get lawyers who are committed to resolving the issues collaboratively and cooperatively. It doesn't hurt to know what a judge will decide, but realistically most issues are settled out of court. In the end, coming up with a separation agreement that you both feel you can live with will do wonders for the future of your relationship.

          If you do decide to progress collaboratively, find a collaborative lawyer and book an appointment. Get some advice, and ensure you don't make any bad moves in the short term. Then, talk to your ex and see if she'll join you in the process.

          In either case, you need legal advice. Contact a lawyer and have an initial meeting. Bring careful notes and a summary of the issues. Then, you'll have a basis from which to work with your ex.

          Comment


          • #6
            For CS and for 50/50 custody I think the normal method is to look up each of your incomes in the federal child support tables, subtract the difference, and the higher income earner pays the lesser that amount. Note that mathematically this "set-off" method for shared custody CS accounts for the fact that shared custody (maintaining two homes for the kids instead of one) is more expensive.

            The CS payment calculation should be done every year, maybe after your taxes are done, and automatically adjusted. This is fair and predictable which will save lawyer fees and frustration in the future. Get the idea though that you will pay CS in proportion to your incomes, use the tables, and don't fight or worry about the numbers.

            It would be nice to have a clause that you each must work within your profession at least 3/4 full time or else a salary of 3/4 will be imputed for the purposes of CS calculation. Don't know if this is enforceable but at least it would be written down that you are both required to support your daughter.

            Your special expenses should be shared in proportion to the incomes you used to look up the child support values. Note that there is a difference between special expenses and others - to me special means is not something that has to be bought by both parents (food, clothes, car, gas,..), and is agreed to by both parents that is should be purchased (camp, laptop).

            I think the big issue is your house. She does not have any ownership in it, but I think she may think of it as half hers and when you decide your (common law) marriage is over she will panic, be upset, and feel ripped off. Depending on her character, it may take her some time to realize that your obligations to each other stop with your child and she has no moral or legal right to your assets after such a short relationship. The good new is that everything is in your name. My only concern is that your partner may say that despite earning equal income, with any difference compensated by CS, you simply have way more assets and subsequently the standard of living for the child would be significantly different in her house and therefore she needs some of your assets, or more CS, to compensate for that difference for the sake of the child. You having sole custody would fix that! Otherwise I have concerns here though I can't offer any other insight on that.

            One more thing to consider is predictability for the entire childhood of your daughter which includes knowing what your agreement is with respect to when at 13 she decides to live with mommy (both parents must agreem in my opinion!), or what your obligations are when she goes to post secondary school, or what happens when she is a university drop out and just hangs around living at mom's house, and mom wants full CS!

            Another thing (again about predictability) is to make sure you get a separation agreement written up, that BOTH of you get INDEPENDENT laywers to review the agreement and state that each of you have been advised (you don't have to follow the advice), and get is signed and properly witnessed. Make sure it is all written down so that in a disagreement you can at least say - 'our agreement says this' and stop arguing.

            Also important is the status quo - if you separate, start living the life that you want in your agreement - that means take care of your daugther at least half of the time (anything less than 40% is really bad for you), keep money separate, start paying CS, make sure she moves out and not you, keep good records, remember that anything you write down (email etc) can be used against you so always be civil, honest and straight forward, and fair.

            The last thing is to AVOID lawyers at all costs, they only make money if you are fighting. If you have a lawyer remember that YOU are in charge. The ideal situation is that you and your common law come to grips with what is fair (hopefully what I and others have mentioned here), understand what is common in this situation, and then TELL your lawyers to write that up and not to try to help either of you get a 'better deal'.

            Good luck to you and your daugther, hey and your partner too!

            Comment


            • #7
              All good advice.
              I would like to add one small thing that can prove to be a great asset should thing get "ugly".
              Start to keep a daily diary. You indicated that presently you care for the child's basic needs most of the time. I would document this meticulously.
              Use dates and times, if you always drive to daycare, include drop off and pick up times. IF you bathe her, feed her, play outside with her, take her to the park, and document all of it.
              It lends to the argument that you have and are taking the primary care giver role. Sounds like overboard and hopefully you’ll never have to produce it, but better to do too much then too little.

              It is common that the mother maintains primary residence, however, if you take the advice and not move out, have her move instead, you can petition to have your home as the primary residence in a 50/50 split parenting plan stating that this is the only home the child knows and is comfortable with. Having your home the primary would minimize any emotional disruption for the child.

              Comment


              • #8
                Many thanks for everyone for the advice.

                I like the idea of documenting the care-giving. My big fear actually is the primary residence. Main reason being we each work full-time near my house (ie it's a 15-20 minute drive to work, daycare and family doctor are in the area as well.

                If she were to move out, she would prefer moving far to the outskirts of town in suburbia and my main fear would be if it's a 50/50 split and she is the primary residence. Whenever I have her, I would have to drive completely out of my way in the morning to drop off at school (to one in her zone) thus we would have to get up ridiculously early to drive an hour there, then I would drive an hour back to work and after work another hour to get her and an hour back, what kind of quality living is that If we have to get up at 5:30-6, and not get home after work til close to 7pm (and I'm spending 4 hours a day in the car to drop off and get her)? If she gets primary residence, are there any conditions that would prohibit her from moving far away? as right now my house, both our places of work and daycare are all within a 20 min radius of the house. It would make logical sense I'd get primary residence, as mom works near my place anyways it wouldn't be much of a hassle at all for driving to school and daycare before/after work for either.

                Comment


                • #9
                  I would caution you that mobility issues are tricky...I had an agreement whereby neither parent could remove the child from the school district without a court order or written consent...ex decides to move an hour away, and my research showed me I had little chance of fighting the move in court. Now my child is subjected to 1 hour commutes just to get to the bus stop on ex's days...
                  But because I remain in the school district, I get "primary" status by default.
                  See previous threads on this for more info.
                  bottom line: sometimes agreements aren't worth the paper they are written on!
                  Be thorough, and be clever...

                  Comment

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