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Cohabitation and Common Law Couples

Cohabitation and Common Law Couples

Posted by on Oct 27, 2016 in blogs | 0 comments

What does it mean to cohabit? To cohabit means “to live together in a conjugal relationship, whether it be within or outside of marriage.” In Ontario, this includes same sex couples. To be considered a common law spouse in this province, you must either live together for 3 years or be in a relationship of some permanence where the parties are natural or adoptive parents of a child. It is important to note that you do not necessarily need continuous daily cohabitation to be considered a common law spouse (Campbell v Szoke, 45 R.F.L. (5th) 261 (Ont. C.A.)). You can have separate residences and still be considered a common law spouse. Of the many differences between married couples and common law couples, the most pronounced is the statutory rights regarding property that are afforded to married couples but are withheld from common law spouses.  Ontario’s Family Law Act does not extend property rights to common law spouses. So then, what property rights do I have? Although property rights are not extended to common law couples under the Family Law Act, common law couples do have remedies under the law of resulting trusts and constructive trusts. For a member of a common law couple to make a claim relating to property based on the law of trusts, they must be able to show the following three things: that the Defendant has been enriched; that they have suffered a related deprivation; and that there is an absence of a juristic reason for this enrichment. So what does this mean? Lets take the example of Kelly and John. Lets assume that Kelly and John have lived together for 10 years. Kelly owns a home. Throughout their years together, John helps pay bills, takes out a loan and makes some of the mortgage payments, uses his own money to repair sections of the house, and contributes to the upkeep of the property.  After 10 years the parties separate. Upon doing so, John brings a claim in the Ontario Superior Court of Justice for a monetary award because: Kelly’s property increased in valued over the past 10 years; John contributed extensively to that increase...

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Entitlement to Spousal Support

Entitlement to Spousal Support

Posted by on Oct 19, 2016 in blogs | 0 comments

Am I entitled to Spousal Support? As a divorced or separated spouse in Ontario, you may be entitled to spousal support depending on your particular financial situation and the circumstances of your relationship. There are two pieces of legislation in Ontario that govern the concept of spousal support. The Divorce Act acts as the relevant legislation for spousal support pertaining to legally married couples about to obtain or who have already been granted a divorce. Alternatively, the Family Law Act applies to couples who have been legally married, but are opting for separation rather than divorce, and common law couples who have cohabited for three years and/or have children. However, irrespective of the applicable legislation in your case, it must be emphasized that entitlement to spousal support is not automatically assumed based solely on satisfying the definition of “spouse”. The present article will briefly outline the legal principles that underpin spousal support and its related issue of entitlement, with an examination of relevant case law. Guiding Principles for Entitlement Entitlement to support is an inquiry that is made prior to looking at quantum and duration (an area that is not the subject of this paper).  Quantum and duration of support is determined by the Spousal Support Advisor Guidelines and in day to day practice, is largely arrived at with the help of support calculating software. Generally, when looking at spousal support, courts are expected to consider the length of the relationship, the parties’ present financial situations, and the familial roles that were undertaken while together. The purpose of support is recognize economic advantages and disadvantages that flow from the marriage and its breakdown; to apportion between the spouses the financial consequences of caring for children; to relieve economic hardships from the breakdown of the marriage; and to promote the self-sufficiency of each spouse. In the case of Bracklow v. Bracklow, [1999] S.C.J. No. 14, the Supreme Court of Canada used these overarching principles to establish three basis for entitlement to support: contractual, compensatory, or non-compensatory. With a contractual basis for support, a court can determine entitlement if any agreements, whether implied or express, between the parties created or negated...

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