Category Archives: common-law spouses

What property rights do I have if I’m in a common law relationship?

Property right in a common law relationship

When it comes to the division of property in Ontario after a common law relationship comes to an end, many people believe that they benefit from the same legal rights as any married couple, especially when children are involved.

It’s true to say that legal rights pertaining to children will be the same as if you were married, however, the biggest difference between married and unmarried couples is that you’re not automatically entitled to make any claim to the property you’ve shared and possibly contributed to, nor do you have an automatic right to live in the home that you have resided in.

Property right in a common law relationship

When am I entitled to make a claim on a property owned by my common law partner?

Firstly, you would need to be considered to be in a common law relationship according to the Family Law Act and then you would need to provide evidence to prove monetary or another contribution, such as your time, which significantly bettered the household and benefited your common law partner. You may also have a claim if you can establish that the manner in which you operated as a couple greatly prejudiced you while benefiting the other side; thereby entitling you to have an interest in their property.

How do I know if I’m in a common law relationship?

The rules around this vary from province to province but in Ontario, this usually comes down to the length of the relationship and whether any children are involved. If there are no children involved, you are required to have lived together for at least three years before being deemed to be in a common law relationship and where there are children from the relationship, this time may be reduced to one year, although every case is different.

How can I prove my contribution to the household?

This is where the division of property becomes more complex in a common law relationship scenario as the responsibility falls upon the non-owner of the property to provide evidence of their contribution.

Most people in this situation will need to consult a lawyer to represent them in court as it becomes a matter of contract law as opposed to family law. If you feel as though you’ve made a valuable contribution, monetary or otherwise, over the course of the relationship, there are essentially two claims that you might be able to bring to court; unjust enrichment and constructive trust, both of which have different factors that need to be proved for the judge to make an award.

Protecting your interests

Whether you’re in a relationship and about to move into a property owned by your partner or, already in this situation and concerned about protecting your interests, there are ways in which you can be proactive and feasibly avoid the need for court should the worst happen.

Cohabitation Agreements can be drawn up by an experienced family lawyer, outlining how property should be divided if the relationship were to break down. Although this might seem like an awkward conversation at the time, once you and your partner have come to an understanding about where you both stand, it’s much less stressful to address it at the start of a relationship than it is when things may have become strained. You can get a sample cohabitation agreement but you will each need your own lawyer to advise on what your legal rights and obligations are under it for it to be legally binding in Ontario.

If you’re already going through the process of separation from a common law partner, the other arrangement that you could make is a Separation Agreement. As long as the parties are able to agree, a well drafted agreement sets out how the property is to be divided and can again save on time and money in going to court, but it is also enforceable by court should the need arise (again, so long as each party has made full financial disclosure and had independent lawyers acting for them).

Need advice on your particular situation?

If you want to understand how to best protect your assets or you need some help determining what you might be entitled to, contact our team today to book your free consultation with a member of our Family Law team.

Epstein & Associates, Barristers and Solicitors – Posted on August 12, 2019

 

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Marriage-like relationships hard to prove in court, B.C. case shows

The courts can be a real heartache when it comes to complex relationships and claimants hoping to establish their rights as a spouse.

They shared pet names, dogs and the cooking.

But when Penny Neufeld lost the man who used to call her his “wife without a wedding,” what proof did she have that their relationship was actually spousal?

Norman Dafoe’s children claimed Neufeld was just someone their dad “took in at a difficult period in her life.”

They tried to pin him down on the exact nature of the relationship many times before he died, but doubted it was “intimate.”

And so, in what lawyers say is an increasingly common occurrence, it was left to a judge to sift through the details to determine if the two lives were — in fact — one.

“The only document in evidence that actually suggests that they had any kind of joint enterprise is a receipt from a veterinarian,” B.C. Supreme Court Justice Mark McEwan noted in his decision.

‘No end’ of disputes

No paper perhaps, but there were witnesses who saw the couple together: a storekeeper and a friend.

Neufeld recalled Dafoe’s smoking habits and how often the house they shared had been painted.

And then, McEwan said, there was her nickname: “‘D-Rod,’ apparently a reference to her hairstyle looking like that of Rod Stewart, the entertainer.”

Kimberly Whaley

Toronto-based estate lawyer Kimberly Whaley says the courts have seen an increase in cases involving complex family arrangements. (Kimberly Whaley)

“There’s no end of the types of disputes, but it is interesting to see how our courts are treating these relationships,” says Kimberly Whaley, a Toronto-based estate lawyer.

“Part of it probably has to do with sheer demographics in an aging population. People living longer, being healthier in later years, having later life partnerships. And then these unions cause rights and obligations.”

Whaley wrote a paper last year showing trends that “demonstrate an increase in competing family interests.” The number of Canadian common law couples rose 13.9 per cent between 2006 and 2011; more than 12 per cent of couples with children are step-families; and nearly half of those involve complex permutations and combinations of kids.

People lie about relationships at the best of times. They become downright secretive when religion, culture, children or Revenue Canada is involved.

Which means lawyers call on everything from Christmas cards to prescriptions for Viagra to establish a “marriage-like” relationship.

If it looks like a marriage …

As part of his reasoning, McEwan referred to a list of “indicia of ‘cohabitation or ‘consortium'” which comes up time and again in spousal support cases. It covers everything from sleeping arrangements to conduct in public.

Did the parties have sex? If not, why not? Did they buy gifts for each other on special occasions? Who did the shopping and cooking? How did the community and their children view them both alone and as a couple?

Even so, making a call can be tough.

Ontario Superior Court Judge Duncan Grace admitted his frustration last summer after Helen Havaris spent months trying to convince him she was entitled to part of John Prelorentzos’s estate.

The 71-year-old was still married to another woman when he died, though they had been separated for years.

But Havaris claimed she lived with him, travelled with him and attended his family’s Christmas, Easter and birthday celebrations.

His children said they saw no signs of affection. Indeed, they claimed their father used to joke about the fact Havaris “had placed a chain on the inside of her bedroom door.”

The judge said he found Havaris’s testimony “wooden.” Not one of her witnesses “mentioned a single word or gesture that demonstrated affection.”

“Despite the length of the trial the evidence on this issue left me asking: is this really all there is?” Grace wrote.

But in the end, after poring through documents including the pair’s rentals of one-bedroom hotel rooms, Grace decided “by a very thin margin” that Havaris qualified as Prelorentzos’s spouse.

Kids are always the last to know

In both that case and Neufeld’s challenge, the judges had to consider the attitude of the deceased’s children toward a woman who was not their mother.

When Dafoe was close to death, “a nurse who mistook the plaintiff for the deceased’s ‘wife’ appears to have created anxiety in the deceased’s family,” McEwan wrote.

Georgialee Lang

Family law expert Georgialee Lang says children are often the hardest to convince in spousal estate battles. (Georgialee Lang)

There were competing stories about deathbed statements and cash boxes. His family changed the locks on the doors. Neufeld “announced she would not be staying.”

B.C. family law expert Georgialee Lang says she has represented many women seeking to prove their place in a man’s life. Inevitably, the offspring are the hardest to convince.

“That’s part of the dynamic. He doesn’t want to disappoint his children. Sometimes a relationship has happened very quickly after a spouse died and it’s seen as unsavoury,” she says.

“It’s all those kind of personal, emotional and moral dynamics that come into play.”

In the end, McEwan decided the proof of Neufeld and Dafoe’s relationship lay as much in how others saw them as in how they saw themselves.

She was a caregiver during his illness. He bought her two cars. They appear to have been faithful to each other. 

And McEwan said the very fact his children had been asking what was going on for years “implicitly affirms a relationship that appears to be spousal or becoming spousal.”

The judge awarded Neufeld $60,000 out of a gross estate worth $160,000.

It’s a battle you can avoid with two simple weapons: a piece of paper and a pen.

Corrections

  • A previous version of this story mistakenly said Dafoe was awarded $60,000 by the judge. In fact Neufeld was awarded $60,000.
    Nov 02, 2015 6:49 AM PT

Source: Jason Proctor, CBC News Posted: Nov 01, 2015 2:00 AM PT

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Buying a House Together Before Marriage? Read This First

house keys in a ring box

Love may be blind, but don’t go into a real estate purchase with your eyes closed.

Serious young couples used to mark their commitment to each other with an engagement ring, but now they’re in the market for a bigger asset: a set of shiny new house keys.

One in four couples between the ages of 18 and 34 bought a house together before they were married, according to a study by Coldwell Banker Real Estate. MONEY found in our own poll of 500 millennials’ financial attitudes that 40% think it’s a good idea for a couple to buy a home together before marriage, while 37% think the purchase should take place prior to the wedding.

Low-rate mortgages, rising rental costs, and the ability to deduct mortgage interest from income taxes all make being a homeowner now rather than later seem like an attractive option. And while making that move first can work out well, as it did for Seattle couple Katy Klein and Charles Hagman, not every story has that same happy ending.

In fact, many financial planners advise against it. That’s because buying a home is often the biggest and most financially complicated move a couple makes, and unwinding it can be especially difficult for unmarried partners if the relationship ends. So if you’re buying a home with your beloved before getting hitched, spare yourself any potential financial heartbreak by following these tips.

Compare Credit Scores

You and your partner have probably already shared details about your income and savings when determining if you could afford to buy. But another piece of information you’ll need to share well in advance of closing is your credit report.

“If a couple is entering into a business deal, which is what a home purchase between two non-married people is, they should know the creditworthiness of their business partner. A person’s credit score will impact your ability to obtain a mortgage and the interest rate you will pay,” says Pewaukee, Wisc.-based financial adviser Kevin Reardon.

If you or your mate has a poor score, it could influence how you decide to title the property and who takes responsibility for the loan. Married couples are generally viewed by creditors as a single unit, but unmarried couples are assessed as individuals, even if applying for the loan together.

“This can work to your advantage if you have the person with stronger credit purchase the home,” says Sandra O’Connor, regional vice president with the National Association of Realtors. By eliminating the poorer score from consideration, you can secure better rates. On the flip side, with only one person applying for the loan, and thus one income on record, the amount you qualify for could be lower than what you could get with two incomes. And, of course, only one person’s name will be on the loan and deed, leaving the other partner vulnerable in the event of a breakup.

Open a Joint Account

Consider setting up a joint bank account, if you don’t already have one, that can be used to pay the mortgage, property taxes, insurance, and maintenance, Reardon suggests. Each of you can set up automatic monthly deposits into the account from individual bank accounts; this way neither party can forget. You can further simplify bill paying and budget tracking by having home expenses automatically deducted from the account each month.

Decide How to Manage Costs

When you cosign on a mortgage, you are 100% liable for the debt, which means if the relationship turns sour and your partner stops paying, you must assume the entire obligation. For this reason, financial planner Alan Moore, co-founder of the XY Planning Network, recommends choosing a home with a mortgage you can swing on one income. That can also be a huge help down the road in the event of unexpected illness or injury, since you’ll still be able to afford the monthly payments.

Before setting a housing budget, both partners need to have an honest conversation about the amount of debt they’re comfortable living with. Just because you can borrow the maximum amount doesn’t mean it’s a good idea. Stretch your combined budget too far, and any unexpected expense will likely have one of you coming up short when the monthly payments are due.

Put Your Agreement in Writing

Contact a real estate lawyer to prepare a written document, such as a property, partnership, or cohabitation agreement, that clearly outlines the full details of your arrangement, including what percentage of the home’s equity each partner is entitled to, especially if you contributed different sums to the down payment or mortgage balance, and what will happen to the property if you split up.

“The contract should specify whose name will be on the deed or lease, one or both, who will pay for what—I pay the utility bill, you pay the cable bill—etc.,” says Reardon. “It would be productive to note what happens if one party can’t pay. Will both parties move out? Will one party take over the payments for the other, if they are able to, then create a note receivable from the partner who can’t pay to the partner who can? Will this note be collateralized? It’s great to iron out these details in advance because it removes any doubt or emotions in the event things turn out badly.”

Title It Right

You and your partner must decide how you will own the home or take title. You have three options: One person can hold the title as sole owner, both of you can hold title as “joint tenants,” or you can share title as “tenants in common.”

Typically, you would want both parties to hold title, as putting the property in only one partner’s name leaves the other partner without equity in his own investment. (You’ll certainly want that separate written contract mentioned above if you go this route.)

If both partners sign the title as tenants in common, then each owns a specified percentage of the property. One person may own a 60% interest, while the other owns 40%, for example. This split is specified in the deed. If one partner dies, ownership will not automatically transfer to the other homeowner unless that person is named in the will; instead the deceased owner’s heirs will inherit his or her share.

When you hold title as joint tenants with right of survivorship, you are considered equal owners, and if one of you were to die, the other would automatically inherit the other’s stake and own the entire property.

Bottom line: No matter how you hold title, it is important that you and your partner enter this agreement with a complete picture of each other’s finances and a written contract outlining your desires for the property’s division should the relationship end.

Source: Time.com  July 1, 2015