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Spousal Support (Alimony)In Ontario, spousal support (also known as alimony) is only payable to a “spouse.” A spouse can be a common law partner, so living together with someone can eventually give rise to an obligation to pay spousal support, even if you are not married. In Ontario you are considered to be a “spouse” once you marry. If you and your partner are living common law, then you will be considered a spouse for spousal support purposes if you and your partner have cohabited for three years; or if you and your partner live in a relationship of permanence and have a child together. Section 2. 9 of the Family Law Act requires that the cohabitation must be continuous, so if you’ve broken up for a period of time and then gotten back together, this may affect whether you are considered a spouse. Once a common law partner is considered a spouse for spousal support purposes, they have the same rights and obligations regarding spousal support as if they were married. 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These types of claims tend to be complex, difficult, and uncertain. Best Practice – Don’t pay for things unless your name is on title. For instance, don’t make half of the home payments unless your name is on title to the home. Unjust Enrichment. There are three elements to a claim for unjust enrichment: 1. One party has been enriched due to his or her partner’s effort, work, or financial contribution. Deprivation. The other party has suffered deprivation, normally by sacrificing time, money, future prospects, and so on. No Legal Reason. There was no legal obligation to provide the enrichment. Constructive Trust. What is a constructive trust? A trust just means that one person holds legal title to an asset, but he or she is holding it for the benefit of the other. So, for instance, although your common law partner may be on title to the home, part of it really is owned by you. The “constructive” part of “constructive” trust just means that the trust is implied by the court, rather than specifically set out in a legal document. The court will may imply this if you have made contributions to the asset. So, for instance, if you contributed financially to a home by paying part of the mortgage, property taxes, repairs and upkeep, or contributed by building an addition, and so on, a court may find that you have a constructive trust in the home. Matrimonial Home. Ontario gives the matrimonial home special status for married couples. For instance, under the Family Law Act, you get a credit for any asset you bring into the marriage, but if your brought the matrimonial home into the marriage, you do not receive this credit. However, for common law couples this special treatment does not exist. The matrimonial home is treated similar to any other property, which means that when a relationship ends, whoever is on title gets the home. If both parties are on title, then the home is split equally. If a couple cannot decide what to do with the home, a judge will often order it sold and then the proceeds are split. As well, the Ontario Family Law Act grants special possessory rights to the matrimonial home to married couples. Under this regime, both spouses have an equal right to remain in the matrimonial home regardless of who is on title. As well, one spouse cannot sell or mortgage the matrimonial home without permission from the other. Practice tests for CompTIA A+ Network+ Security+ and Linux+ certification exams. Exam simulations, sample questions, answers, explanations, custom feedback. We're fighting to ensure you and your family can get a fair deal in the marketplace, especially on the choices that matter most: health care, privacy, automobiles. This does not apply to common law partners. For common law partners, you only have the right to remain in the home if your name is on title. 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Under this act, your common law partner is considered a spouse if you are in a conjugal relationship and either (a) have cohabited for at least one year; (b) have a child together; or (c) have entered into a cohabitation agreement together. What if My Partner or I is Still Married to Someone Else. Oftentimes, people separate and start a new relationship with a new partner without getting a divorce first. However, the fact that one or both partners is still legally married to a third party does not affect common law rights in Ontario. Am I Cohabiting? When you think of a common law couple, you may think of a couple living together as if they were married, only without a marriage certificate. The reality is that there are a wide variety of types of common law relationships. There has even been the odd case where a couple that is dating is considered common law in Ontario. To determine if you are common law, Ontario courts look at the following factors: 1. Shelter – did you and your partner live together; 2. Sexual and Personal Behaviour; 3. Services – did you and your partner help each other the way a traditional family would; 4. Social – did you and your partner portray yourselves as a couple; 5. Societal – how did the community view your relationship; 6. Economic Support – was one partner support the other financially, or were your finances combined?; and. Children – did you interact parentally with each other’s children? Here is a sample of cases that have been decided using these criteria: Cohabitation was found in the following cases: (a) Hazlewood v. Ct.)The parties were the parents of two children. The father worked in one community but spent his weekends at the mother’s residence. The father had a room at the mother’s residence in which he kept things of a personal nature. The mother cleaned the father’s room. The parties had discussed marriage and had jointly met with a financial planner. The father had named the mother on an application for extended health benefits through his employment. The parties spent their weekends together sharing common activities as a family. The father had given his coworkers the telephone number of the mother in the event that he needed to be called on weekends. |
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