Tag Archives: common law

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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When the only ring is on your keys: What common-law couples should know before buying a house together

Charmaine Ferguson and Colin Andrews have been together for three years, since they were 28.

Their lives are tied together in almost every significant grown-up way. They love each other, they support each other — Colin even moved from Edmonton to Calgary so Charmaine could accept a teaching job — and they own property together.

But they’re not married. They’re not even engaged.

“We decided to move, and then we were in a position deciding whether to rent or to buy and so, Colin sold his townhouse and then we bought a house in Calgary together,” Ferguson says. “Marriage was never part of the conversation.”

They’re part of a growing number of Canadians who are choosing to buy property without tying the knot.

The number of common-law couples in Canada rose 13.9 per cent between 2006 and 2011, according to the latest data from Statistics Canada. While there’s no Canadian data on how many of those couples choose to purchase instead of rent, a 2013 study in the U.S by Coldwell Banker Real Estate found that 17 per cent of couples bought a home before they were married, with that number rising to 24 per cent among millennials.

Chris Bolin for National Post

Chris Bolin for National PostCharmaine Ferguson and Colin Anderson bought a house together, but they’re not married, or even engaged.

This trend is part of the larger shift in how millennials — and, increasingly, society at large — view marriage.

“We live in a time where people don’t necessarily see marriage as necessary for making all kinds of commitments,” says Eric Klinenberg, a professor of sociology at New York University who co-authored Modern Romance with Aziz Ansari.

For most of Western history, going back to ancient Greece, where husbands and wives were scolded for feeling eros, a passionate love for their spouses, instead of philia, a friendship-based love, marriage was a union that technically featured two individuals at its centre, but really expressed itself as a tightly woven net that stabilized, secured and nurtured clan alliances, offspring and property.

Five questions you need to answer before you buy a house together

Fotolia
Karin Mizgala, founder of Money Coaches Canada, has some tips on what to talk to your partner about before you take the property plunge — relevant to married and unmarried couples alike.

1. What sort of living situation do you want?

He wants a big house in the suburbs, you want a semi-detached downtown. Have a good “heart-to heart on what each individual is looking for,” she says, before starting your search.

2. Who’s covering the down payment?

If you’re not married and break up in the first few years, the house will likely be divided proportionally according to who contributed to the down payment. If only one-half of the couple can contribute to the down payment, it’s possible the other party could be left with nothing, even if he or she helped pay the mortgage or for renovations. If there’s an inheritance involved, it could lead to resentment. You’ll need to find a fair way.

3. Have you thought of all the monthly, extra expenses?

If only owning a house was as simple as paying the mortgage. “One of the biggest mistakes people make is they crunch the numbers but then they’re not really considering setting aside money (for) any emergency things that come up,” Mizgala says. Who’s responsibility is it to pay the plumber when you have a leak?

4. Have you drafted a cohabitation agreement?

No? Well you should. To avoid he said/she said arguments later on, write down how you’ll divide the household responsibilities and who is entitled to what if you separate. You can always change it later on.

5. Have you gotten professional legal help?

You’ll want it. A lawyer will sit down with you and help you draft a fair cohabitation agreement, and advise you on your province’s common-law provisions.

Danielle Kubes, Financial Post

Sharing finances without the church or state recognizing a committed union was impossible. Literally: Women weren’t allowed to hold property in their name in Canada or the U.S until the middle of the 19th century.

It was socially unacceptable for quite a while longer; the risk of loss and destitution without the protection afforded by a legal union — protection that continued even if the marriage collapsed — was too great. Women especially, as they were usually the lower-earning spouse and unable to contribute monetarily to the household, would have been greatly disadvantaged.

But, now that both genders can successfully achieve everything outside marriage that they could formerly only accomplish within the institution, entangling assets out of wedlock is just another one of marriage’s ancient functions that has gone the way of the dowry.

“Marriage is going to be a decision, to me, which is entirely based on your love to that person, your commitment for that person, your willingness to go forward and support that person,” Andrews says. “It’s not in any way a financial decision for me.”

Klienberg echoes this modern viewpoint, that marriage is not the beginning from which a shared life develops but is rather an emotional commitment that comes after the shared life has already been tested and found true.

“I think for a lot of young couples buying a home is an economic decision and it’s a better idea than renting. I say this not as a sociologist who studied it, but also as someone who did this personally,” he says. “For me, buying a home with someone felt like less of a commitment than getting married. It’s relatively easy to sell a home if you decide you want to do that, but getting divorced is a much more complicated thing.”

But is it really so much easier to offset assets if a couple falls apart, especially if it’s acrimonious? How does the court divide these assets? What are the risks to entering such an arrangement?

Canada does not have true common-law marriage. Although provinces and various government agencies, like the CRA, may recognize marriage-like relationships in specific contexts, automatic rights to property are not included. But, couples who act like they’re married and buy property together can be entitled to most of the same protections that the law affords legally married couples.

“The Supreme Court of Canada case that was in the last couple of years says if you live as husband and wife, legally you should be treated the same way when it comes to property,” says Donald S. Baker, a family law specialist at the Toronto firm Baker and Baker. “However, as is their wont, they didn’t give any guidelines at all.”

The main difference, he says, is that a married couple, from the date of ceremony, is considered a partnership, regardless of who actually deposits and withdraws from the piggy bank. Upon the breakdown of the marriage, the piggy bank is divided equally, usually to the benefit of the lower-earning spouse.

Source: Danielle Kubes, Special to Financial Post | September 16, 2015 10:50 AM ET

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