13 March 2011

Becoming Common-Law

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.

For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.

111 comments:

  1. Thanks for the info. I just have one question. When do I qualify as common law husband in British Columbia? I've read in Canada Revenue website that if my girlfriend and I lived together in a conjugal relationship for at least 12 continuous months, then we are considered common law. But in another site, it says in BC, it takes two years before we are considered in a common law relationship

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  2. The answer depends on the law that you're looking at. Under most, but not all, federal legislation you become a spouse or common-law partner after living together for one year; under most, but not all, provincial legislation you become a spouse after living together for two years. The CRA operates under the federal Income Tax Act, and so you'd be a spouse for the CRA after one year. For the purposes of BC's Family Relations Act, you need to have lived together for an additional year.

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  3. I am engaged to my partner who has recently moved out here to BC from Ontario a few months ago. We are looking at adding her to my MSP account. From what I've read, 2 years seems to be the magic number for a relationship to be common-law. I also read that there are 2 ways to be considered common-law. One is the 2 year period the other is "a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law" What exactly is "common law", and do we qualify?

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  4. If the post above doesn't help, try the chapter "Unmarried Couples > Common-Law Relationships" on my website at www.bcfamilylawresource.com/09/0902body.htm.

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  5. Thanks for the quick reply John-Paul.
    In my case. My partner and I have a child and apparently we are considered living in a common-law the date we started living together because of that.

    So if a couple started living together, let's say, Aug 2010 and have a child together, they are common-law Aug 2010. This is according to CRA representative.

    CRA states that For Income Tax purposes you are considered to be living in a common-law relationship on the earlier of these two dates:

    1)"the date your partner became the natural or the adoptive parent of your child, regardless of how long you have been living together."

    2)12 months after you and your partner started living together.

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  6. There's a distinction between how long a couple have to live to qualify as common-law spouses and when their common-law relationship is considered to have started

    I can't say much about the federal Income Tax Act, which is largely where the CRA's rules come from, but under the provincial Family Relations Act, it takes two years of cohabitation to qualify as a "spouse", but once your qualify your relationship is considered to have begun the day you began to live together in a marriage-like relationship. In other words, if the two-year anniversary of a relationship occurred on 1 April 2011, the couple would be considered to have been in a spousal relationship since 1 April 2009.

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    1. I have what some might consider a bit of a strange situation,...my sisters-sister "stay with me on this" my sisters-sister, came out here to visit family and was staying with me, well she ended up staying here as my roomate, as she dated other guys and i was in my own relationship at the time. Well time has passed and she has lived with me for like 3 years now. we have always paid our own bills and kept everything seperate. However,..now here comes the strange part as of june this year we kinda started seeing eachother. I know we r related but not really as we have entirely different parents. Please dont judge. We would like to now consider ourselves commonlaw as we have always claimed single for the time she lived with me. Does anyone know How i might go about this? and might I have trouble with the government If I decide this? Will i owe the government money for claiming single for those years? I feel like because of the law I either have to break up with her and move away from her, or some how start claiming as commonlaw.

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    2. The thing about unmarried relationships that qualify as spousal is that they start and stop when the marriage-like quality of the relationship starts and stops. I don't think anyone would care about when you tell people that the marriage-like quality of your relationship began, however if the CRA finds out that you were in a spousal relationship before you said you were, they may want to adjust any tax benefits either of you received in respect of children. Since you pay more taxes as a single person, the CRA likely won't care about your personal taxes. You should get some proper advice aout the tax implications.

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  7. Does it change anything if there are children involved from a previous marriage? If I am currently seperated from my husband, and I have a new partner that moves in, does it still take a year to be considered common law with the new partner?

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  8. Wikipedia states "In British Columbia, a person who has lived and cohabited with another person, for a period of at least two years is considered a common law spouse, unless one or both of them were married to another person during this time, according to the "Estate Administration Act".[11]" Is this still the law in BC?

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  9. What you have to do is look at the Estate Administration Act, available on the BC Laws website of the Queen's Printer at http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96122_01.

    Section 1 of the EAA says this:

    "common law spouse" means either

    (a) a person who is united to another person by a marriage that, although not a legal marriage, is valid by common law, or

    (b) a person who has lived and cohabited with another person in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years immediately before the other person's death;

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  10. With the definition of "common law spouse" as you stated, then a person can be legally married in the traditional way (not common law)to one person and still live with another person for 2 years and be considered married by common law. I didn't think it was legal in Canada to have 2 (legal) spouses at the same time.

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  11. This has been the subject of much discussion lately. Click on the "Polygamy" label to read some recent discussions.

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  12. I am not an attorney and, honestly, legal lingo is confusing to me. Here is the scenario: Woman has 2 children with husband and is still legally married (never divorced) to husband. Now she, with her 2 children, move in and live with another man for more than 2 years and they purchase a house together (in both their names). Woman's children are grown and she finds another "new love" so she moves out of the house which is not paid for. What happens here legally in British Columbia?

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  13. I'm sorry but I can't give legal advice in reply to comments. If you'd like, you can call my office at 604-689-7571, and after we've done a conflict check I'll be happy to talk to you about your problem.

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  14. I got specific with the scenario to try and clarify since it says one thing on Wikipedia which seems to be in conflict with the law; I threw the kids in because I've seen conflicting opinions on how kids would affect the situation. No problem...I was just curious; I live in the US.

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  15. In that case, the law in British Columbia would likely be entirely irrelevant; the law on these issues can vary enormously from jurisdiction to jurisdiction. You need to speak to a lawyer in your area.

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  16. I am in Manitoba.

    My friends fiance has passed away suddenly. She moved two provinces with her two children to live with him. He had two children from a previous relationship. He did have a will leaving everything to the two biological children, in turn the ex will have control on everything. My Friend can't afford their mortgage on her own or move back where her family is. She gave everything up to be with him and they were to be married in a month... they only lived together for about a year before this tradgedy. Is there anyway to contest a will? other thing is the family is paying for a funeral how can this get taken off his estate.

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  17. I'm sorry but I cannot give legal advice in reply to comments. You should encourage your friend to speak to a wills and estates lawyer right away.

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  18. I have been in a relationship for about a year and a half! My girlfriend would come to see me at work from time to time ! We sighned a lease on a house in sept together , we moved in at the end of oct . We soon broke up but reconciled within one month and she moved in early dec ! It is now march and we have split permanantly ! Up untill this she lived elsewhere ! Sheis now demanding support and half of the items I have purchased ! I would also like to mention that I have three children from a previous mariage that is not yet resolved . I live in northern british columbia . Does this even qualify as common law ?

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    1. I'm sorry but I cannot give legal advice in reply to comments. If you want, you can call me at my office at 604-689-7571, and after we've done a conflict check, I'll be happy to talk to you about your situation.

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  19. Is there any laws or case law that defines if a particular document or court transcript would take precedent in a decision?

    Example:

    • Two parties (party A and party B), including their counsel sign a consent order outside the court.
    • This hand written consent order was presented to the courts the same day.
    • At a later date the consent order was typed up by (party B) lawyer and presented for final signing, but (party A) refused
    to sign it because one of the items agreed upon was no longer acceptable to them.

    Would the signed hand written consent order take precedent over the details captured in the court transcripts?
    I would think/hope that the signed hand written consent order would take precedent because (party A) and (party B) signed the consent order, not the details captured in the court transcripts presented by their lawyers. I can only imagine that both parties would have to give in some to reach an agreement and sign a consent order. If one or both parties were not willing to give in on their position it would force the decision upon the courts, which I believe is the right of either or both parties to do. If (party A) refused to sign the final typed version, doesn’t the (party B) have the legal right to present the entire case to the courts, based on the fact that (party B) would not have signed the original hand written consent order with the changes that (party A) is requesting after the fact?

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    1. I'm sorry, but I cannot give legal advice in reply to comments. If you want, you can call my office at 604-689-7571 and I'll be happy to talk to you for a few minutes after we've done a conflict check.

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  20. Quick question, If you qualify for common-law status, and your work provides benefits to your common-law partner, how do we go about proving our common-law status? Is there a certificate that is provided?

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    1. In general, you should never need to prove that you are common-law, and no certificates are provided by any government agency. Your workplace insurance will usually accept your word for it.

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  21. Are you currently taking clients?

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    1. I am, but I don't accept clients from my blog or website; I maintain these for public legal education purposes, not to recruit clients. You can find a lawyer in your neighbourhood through the CBA's lawyer referral service, or if you want you can call me at 604-689-7571 and I'll see if I can recommend someone to you.

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  22. Hi: If a man dies without a will and was living with a woman (common-law) for more than 4 years. However he was still legally married to another woman for over 30 years. Who is considered his spouse? Which of the these 2 woman has greater claim to his estate estate? Thanks for answering my question

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    1. They'd both be considered to be spouses, but you'll need to speak to a wills and estates lawyer for advice about the relative standing of their claims.

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  23. What exactly is classified as "living together"? if A pays rent for their place. and B owns their own place, and A stays at B's place half of the time, would it be classified as "living together"?

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    1. Quite possibly yes. The case law on this is all over the map, and all I can say is that it all depends on the circumstances of the couple. It's not just an issue of math and who sleeps where when, the court will look at larger social issues to decide whether the relationship is marriage-like in nature: do family and friends think of the couple as a committed couple? do they go out to parties and social functions as a committed couple? do they provide personal and economic assistance to each other? You get the idea; it's all circumstantial. You should speak to a lawyer in your neighbourhood to get an opinion on the likelihood of the court considering your relationship to be "marriage-like".

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  24. I have been living with someone for about a year and a half. He is separated but not legally divorced. He is over 65 and has not yet applied for CPP. When he does, if he dies, who will receive the benefit? myself as common-law or the spouse? P.S. We live in BC.

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    1. I'm sorry, but I can't give legal advice in this blog. You should contact the CBA's lawyer referral service; they can hook you up with a lawyer in your neighbourhood who can give you advice about this either from a property law or a family law perspective at a rate of $25 a half-hour appointment.

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  25. Hi i am a Student currently in British Columbia and i am a Canadian citizen. My girlfriend and i have been together for going on two years. The problem is she is wanting to move here to BC from the states and we are wanting to live together. On her passport though she can only stay 6 months minus a day. We are wanting to live together all the time for years ahead. We are trying to figure out how to get it to where she lives and works here while us being able to be together. Does any of the common-law apply? I know we have to be living together for at least a year but how can we do that when she can only stay for 6 months minus a day? Thanks a lot for the help

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    1. I'm sorry, but I can't give legal advice in this blog. You can probably answer your own question with the information available in the Unmarried Couples > Common-Law Relationships chapter of my website at www.bcfamilylawresource.com. If that doesn't help, you can call me at my office at 604-689-7571 and I'll talk to you after we've run a conflict check.

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  26. If I let a girlfriend go on my health and benefits plan as partner/spouse but never lived together or shared finances, does she now qualify to say we're common law? She says she is just based on myself feeling sorry for her and letting her on my health and benefits plan. She had her own place and so did I.

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    1. I'm sorry but I cannot give legal advice in reply to comments. If you want, you can call me at my office at 604-689-7571, and after we've done a conflict check, I'll be happy to talk to you about your situation. It won't take more than 5 or 10 minutes. You could also read this page from my website, http://www.bcfamilylawresource.com/09/0902body.htm.

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  27. We have been together in a heterosexual relationship for over 10 years. We each live and reside in different countries. He travels to be with me when he can and when he can't, I travel to be with him. We now spend perhaps 8 months of the year living together, somewhere in the world. Can we justifiably claim to be a common-law couple for the purposes of Canadian income tax and pension benefits?

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    1. That's a question you need to have answered by a lawyer who specialized in tax and federal benefits.

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  28. If one common-law has debt (student loan) accumulated before the relationship, in this new law does it mean the other person is also responsible for this debt?

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    1. The new act defined shareable "family debt" at s. 86(a) as including debt incurred "during the period beginning when the relationship between the spouses begins and ending when the spouses separate." If this section is to be read literally, debts brought into a relationship, like a student loan, won't qualify as family debt.

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    2. What would be the situation if the student loan debt that was brought into the relationship is jointly paid off in its entirely during the course of the relationship using joint/pooled resources? Eg. funds from a joint bank account, funds from a joint line of credit or the debt being rolled into longer term family debt such as a mortgage

      In this specific situation would the spouse who brought their student loan debt into the relationship still be retroactively responsible for those original debts even though they have been paid off at some point during the relationship using joint funding sources or rolled into a larger long term family debt?

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    3. I read the new act as saying that the debt has to exist at the time of separation, partly because of how s. 86(a) is worded but mostly because s. 81(b) doesn't make the spouses equally responsible for family debt until separation. If the debt doesn't exist at separation, it seems to me that the spouses can't become equally liable for it.

      If I'm right, that means that the court can't divide the family property unequally to recognize that a debt was paid off using family property. Section 95(2) lists the reasons why family property can be divided unequally and debt is mentioned, but only whether (d) the debt was incurred in the ordinary course of the spouses' relationship, (e) the amount of the debt exceeds the amount of family property and (f) a spouse significantly increased the debt "beyond market trends."

      Unfortunately, a judge may interpret the act differently then I. I'm afraid that if you want more than guesswork, you're going to have to wait until a judge considers and rules on the issue you've raised.

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    4. Much appreciated John-Paul. Thanks for your response and interpretation. It would be an interesting consideration and ruling by a judge for certain!

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  29. I have been told that section 198 of the act (timing) says that a common-law spouse has two years from the date they separate to commence an action and that if a common law couple separate before March 18,2013 they would still be subject to the Family Law Act rather than the Family Relation Act.
    Is that correct?

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    1. Yes, that's exactly it. As long as they separated after 18 March 2011 and their issues have not already been resolved by the court, the FLA will apply to them when it comes into force on 18 March 2013.

      I've written about this here: http://www.courthouselibrary.ca/training/stream/jpboyd/12-08-22/JP_Boyd_Unmarried_Couples_and_Property_Transition_Provisions_of_the_FLA-2589858436.aspx.

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  30. Hi. I'm not looking for legal advice what I am looking for are precedents for the Opting Out
    Provisions mentioned under Part 5 Property Division of this new Family Law Act . My partner and I have both been married before, have no children together (I dont have any kids,he does and we want to keep our assets separate by agreement. Several things I've read mention you can opt out by agreement but nothing I've read explains where you get this agreement what you do with it (i.e. should it be filed somewhere, etc.

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  31. You don't exactly opt out of the Family Law Act - it doesn't let you do that - but you can write an agreement that divides property in a different way than the act would normally require. That's just a matter of writing the right sort of cohabitation or marriage agreement.

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  32. Hi John,
    I am currently applying as the sponsor for the permanent residence my married spouse. Recently I discovered that my MSP coverage was still under my ex - who was "common-law' for about 2 years, however we split up 3 years ago. My coverage is still under his employer - despite the fact that I asked to be removed from it a year ago, and again recently, to no avail. Can this affect my spousal status, even now that I am married? In the application for spousal sponsorship it asks if I have had any previous "spouses". There was never anything legally binding us so I would rather not answer yes, but am I obliged to? We had no joint accounts or anything in both our names, apart from being on his medical coverage. Please advise on any thoughts or concerns you would have regarding this situation.

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  33. I seperated from my commonlaw husband for for 16 months, we got back together in Sept 2012 when I file my taxes am I in a commlaw relationship again or do I wait until the next tax year?

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  34. Hi,
    My boyfriend and i are buying a house together...as in both names on the mortgage.
    We have decided that we would like to co-habitate but we do not want to claim 'common-law' for any reason. He has an ex-wife that he pays support too as well as two (adult) children. I will be living with him but am not willing to assume any of his responsibilites, nor he mine. Ex: I will certainly not claim income tax with him and have his ex able to see my income amounts and/or try to base her support payments on our combined income. I strogly feel that no governemnt can force me to be someone's 'common-law' partner. If I choose to get married..that's my choice. If I choose to live with a boyfriend or even a friend because it is mutually beneficial...I would hope that the government has no opportunity to force a marital status on me that makes me obligated to provide his ex (a woman I've never met) with my financial information. I feel this violates my rights.
    We are signing a co-habitation agreement that, if we choose to end this arrangement will, hopefully, ensure that our existing assests are maintained seperately and that the assets (home) we aquire together is seperated in a way that we are agreeing on prior to entering into the arrangement.
    We will maintain seperate bank accounts.
    Will we be 'forced' by reveue canada or any other laws to be considered 'common law'?
    Can we avoid this? If so, how?

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  35. I am contemplating whether I should apply for common law or not who I've lived with for one year. The thing is, I didn't transfer all my billing and payroll account information to this address so how will they know if I've lived here for a year?
    Also, how do I get a prenup?

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    1. I'm not sure what you mean by "applying for common law". It's not something you apply for. Try reading this post again, and if that doesn't help you can call me at my office at 604-689-7571 and after we've done a conflict check I'll be happy to see if I can explain things better.

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  36. Can cra force you to claim common law even if you are not? My ex and i split in 2011 and now they are questioning us being seperated. He lives with his parents where he has no bills and does not pay rent. We own a home together but myself alone pays bills, mortgage and all expences. Problem is i can not afford to pay a penalty to het him off mortgage. So because he is still listed on the mortgage i think they will force me to be common law when i am not.

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    1. The CRA can make assumptions about the nature of your relationship for tax purposes; it'll be up to you to satisfy CRA that you're not in a spousal relationship. Letters from CRA about things like this usually describe the sort of documents that they would need to see to believe that you're not spouses.

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  37. I have a question, I was married and had two children, we been separated since 2006, I filed for divorce in 2008, wife ran away (out of canada) in 2008 and I was left with the two children, I have not been able to get a divorce from her since no one knows were she is, I have been in a common-law relation since 2009 and she is raising with me the children. what are my options and we are now expecting a child and want to legalize our life but do not know the way forward. what to do, wand what are the legal implication ?

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    1. That's a big question with a big answer. You should speak to a lawyer in your neighbourhood as soon as you can. If you don't know any lawyers yourself, the Canadian Bar Association's lawyer referral service can hook you up with someone for half an hour for $25.

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  38. I'm currently separated from my husband and am now living with another man for over 2 years. Because I am not legally divorced are we considered commonlaw. B.C. Canada.

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  39. Scenario: Elderly couple both on second marriage. He has little financially, she has modest savings. They have enough pension income to live comfortably. What happens if he becomes ill, they need to move to assisted care and his pension is not sufficient to cover the costs. Is she obligated to use her savings (accumulated in prior marriage) to assist him (possible depleting inheritance for her children)?

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  40. Can someone claim to have been in a common law relationship after the death of a supposed "partner" and try to lay claim to the deceased's estate (as the deceased cannot now deny or admit said common law relationship ever existed)? There were no shared accounts, income tax filed as singles, separate bedrooms, etc. Living quarters were shared, but solely owned by the deceased.

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    1. Well, anyone can claim anything. However the burden is usually on them to prove that what they're saying is true is in fact true.

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    2. Would a good lawyer know how to fight this kind of false claim? even with the new BC common-law rules can this be fought?

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    3. Any lawyer who practices family law or wills and estates will know how to fight claims such as these. Whether such claims are false or not depends on the evidence and the law.

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    4. AS the person above also stated, he filed his income tax as single, did not share his bank accounts or personal information, clearly lived in separate rooms, shared the kitchen and living room, the home is and always was in his name only. Yes her claims are false from what my father told me over the years and the legal paperwork he gave to my brother. There are signed affidavits and legal court documents; several stating she was not in a dependent relationship with him, or was not in a common-law relationship and one stating she has not contributed to his assets, signed by her. My lawyer seems to think that even with this paperwork she will be deemed common-law in the eyes of the law due to the new BC common-law rules. She is now denying me (executrix) access to his home has changed the locks. I worry that allowing her to remain in his house for the time being is saying I agree she is common-law when I do not, I worry that she may do damage to his home and steal/sell his personal belongings and property. I believe I will require a court order to have her removed.

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    5. Unfortunately things aren't always so black and white, especially in family law. One person's roommate could be another person's committed couple. Unfortunately it'll be up to the court to decide what the nature of the relationship is. Some couples file their income taxes as a couple, others don't. Some coupes share a bank account, other don't. Some couples sleep in separate rooms, others don't. Some share meals together, others don't.

      I'm glad you've got a lawyer; hopefully it will all turn out well. Your lawyer can also advise about the restraining orders and other remedies that are available to address your concerns about what this person might do to your father's home and property.

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  41. I am the daughter and executor of the deceased's estate (as mentioned above). By allowing the above mentioned to continue to live in the deceased's home until she is able to find a new place to live, am I giving her any validity to her possible assumption of rights as it pertains to his assets (property and holdings)? Is there anything that I should be avoiding or treading carefully with in dealing with her? We are currently amicable, but there are some things that are brought up in conversation, but not acted on (as of yet) that are starting to concern me.

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    1. I'm sorry, but I can't give legal advice through comments to this blog. You really should speak to a lawyer in your area. Try calling the CBA's Lawyer Referral Service. Their number is in the column to the right.

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  42. I was married 3 years ago but have not lived with my husband for most of this time. I have, however, entered into another relationship with another man and have been living with him. I recently divorced my husband. Throughout this whole time, I have maintained a separate mailing address at my own property. Question, am I considered common law to the man I have been living with for 3 years??

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    1. It's not about where your bills are sent or where you tell people you live, but about the nature of your relationship. It's entirely possible that you could be a spouse with the person you're living with. In fact, that's rather likely. You should talk to a lawyer in your neighbourhood to get advice that takes into account your particular situation.

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  43. So I have lived with my NOW boyfriend for roughly 7 years. I moved into his house due to stress at my own home with my family. Long story short I didn't see eye to eye with my step dad. We remained friends until 2 years ago when we decided to become a couple. We just filed as commonlaw this past tax season. Before we claimed we never paid any bills together. Had separate bedrooms and so forth. I am worried about the government stating we have been common law for the past 7 years when we weren't. What do I have to show to prove we were not common law and What kind of steps do I take? I understand you cannot give out legal advice just worried.

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    1. Well, in general the government doesn't care about your relationship. The only consequences would be about taxes if one of you claimed the other as a dependent spouse... but otherwise, I can't see what harm is likely to befall you. You should speak to a lawyer in your neighbourhood to be sure.

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  44. I have been in a common law relationship for 16 months, but for the 7.5 months prior when dating, we were basically living together right from the start. We were known as a committed couple. I stayed at my own apartment probably two weeks in 7.5 months. The rest of the time I was at his house (he owned) and he referred it is as 'our house' and 'home' from almost the beginning of dating. He just shy of 2 years being together has tried to throw me out of the house while I was out of town visiting family....We are engaged (without a ring) and he has referred to me as his wife, his fiance. His family introduces me as his wife. Do we qualify as living together as marriage like for the almost two years and not just the 16 months. We are both over fifty and have children from other relationships, but none of our own. He has bought drinks and meals all the time during the 'dating' and basically supported me bought groceries for myself and grand children etc...

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    1. You need to speak to a lawyer to get some proper legal advice, but off hand if you lived together for seven and a half years, it sounds like you've been unmarried spouses for a lot longer than 16 months!

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    2. 7.5 months, not years. We have been spending almost everynight sleeping in the same bed together 23.5 months in total.

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  45. I've been living with, who is now my fiancé, for only 3 months. Now we are expecting a baby and will get married maybe in around 6 months.
    Can I consider it a common-law relationship? I'm signing up for health benefits and don't really know how to consider our relationship.

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    1. Well, if you and your fiance are living together when your child is born, under the new Family Law Act you will be considered to be spouses for the parts of the act that talk about spousal support. Once you've married or lived together for a total of two years, you will be spouses for all parts of the act, including the part about sharing family property and family debt.

      However, in your case, what you need to know isn't about the Family Law Act but about your health care insurer and how the insurer defines either "spouse", "common-law relationship" or "common-law partner" or some similar term. It's their rules that will apply to determine eligibility, not the rules in the Family Law Act.

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  46. We've been living together as common law for 6 months but we have a 4 months old baby.Can I process for common law sponsorship now that we have our baby or I have to wait for 1 year?

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    1. That's an immigration question, and I really don't know much about immigration law. You need to either speak to someone at Immigration Canada or get proper legal advice from a lawyer who specializes in that area of the law.

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  47. Hello John-Paul,

    Here is an odd situation in regard to common law and spousal definition. I am a paralegal instructor and my students and I are pondering this:

    Under the Employment and Assistance for Persons with Disabilities spouse is defined as living together in a relationship for 3 months. This would have the ramifications to the persons disability income as they now include the household income for determining disability payments, yet the spouse is not eligible for claiming them as a dependent on their revenue Canada return.
    With the Ministry definition the relationship doesn't have to be conjugal and could be determined by financial dependance and social interdependence.

    Interesting to say the least, the Federal and Provincial laws are really at odds here with one having to accept financial responsibility for a person after three months but not allowed to benefit for having to take on that responsibility.

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    1. Unfortunately, the situation isn't odd at all for people reliant on social assistance.

      The basic issue your students are grappling with is that there is no uniform definition of "spouse" or "common-law partner." For most but not all federal laws, an unmarried couple must have lived together for one year to qualify as common-law partners; for most but not all provincial laws an unmarried couple must have lived together for two years to qualify as spouses.

      This can have wide-ranging consequences, from entitlement to the MSP family rate, to inheritance rights, to splitting CPP benefits and entitlement to the CPP survivor's benefit, to the level of EI benefits payable, and all of this is entirely apart from the rights and obligations that come from being a spouse for family law purposes.

      The social assistance rule you're talking about is sometimes called the "spouse in the house" rule because it creates a presumption that allows the government to terminate someone's eligibility for social assistance; a similar rule is found in the legislation for able-bodied social assistance. Of course, the reason for the super-short length of time to qualify as a spouse under these laws is that cutting people off welfare saves the government money.

      However, I should point out that the person who is living with the social assistance recipient really isn't under any obligation at all to support the recipient after his or her benefits conclude. If the relationship continues, that may be a necessary effect of the termination of social assistance, however unless the couple have a child together, the person cannot be compelled to pay spousal support to the recipient until two years have passed.

      Best of luck to your paralegal students. Please tell them that they can feel free to call me it issues come up when they start work.

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  48. Hi, We would like to file our common law relationship with CCRA, but would like to know where else we would have to declare our common-law status besides CCRA? Do we have to state this on passport applications, driver licenses, etc...? I just dont want too many complications or state our relationship everywhere, but would like to let CCRA know of the relationship for spousal benefit purposes i.e. CPP. Thanks for any suggestions.

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    1. You don't need to "file" your relationship with Revenue Canada, or with any other organization for that matter. When it comes time to file your returns in 2015 you'll simply mark down that you are living in a common-law relationship, and provide the name of your partner. CRA may ask you to provide documents in support of your declaration, but they'll only do this if they decide to audit you and the odds of them getting a bee in their bonnet about your spousal status are very slight.

      If the time comes to claim OAS or CPP benefits that relate to spousal status, you'll just file your claim in the ordinary manner. The first thing CRA will do is to check that you've been claiming to be in a common-law relationship on your income tax returns, and if they have doubts for some reason they may ask you for proof of the nature of your relationship. Until that happens, however, there's nothing to file.

      Likewise, Passport Canada and your local driver's license issuing authority, don't particularly care about the status of your relationship, unless you are claiming a benefit that relates to your relationship status. When you're renewing your passport, you will of course provide the updated information. There's nothing you need to file in court, with the land title office, with Vital Statistics, with Elections Canada, the motor vehicle office or your landlord.

      There really is only one thing you need to do if you are in a new cohabiting or married relationship, and that's to let your health insurance providers know. Provincial plans that charge monthly fees, like MSP in British Columbia, should be told, but this is only important if the family rate is lower than the rate for two individuals. However, any private insurers, like Blue Cross, must be told to make sure your partner gets covered by the plan. Some private insurers will refuse to extend coverage if they're not notified of the new relationship within a certain period of time.

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  49. Thank you for your prompt response. To clarify, you are saying we will 'have' to declare our common-law status upon renewal of passport and drivers license? I think my concern is where else do we require to say we are common-law when essentially we want to keep it as minimal as possible (CCRA being on the priority list). I know of many application forms where a relationship status is asked, but do we have to tell them? We are in a same-sex relationship and live in Ontario.

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    1. Troy Ellis14/8/14 5:58 AM

      I think what the poster is trying to find out whether he will have to declare his same-sex relationship to anyone other than CRA and is probably concerned about the negative reaction from that. It is understandable as a same-sex relationship can and does cause prejudice and not everyone is comfortable declaring it. But from what I am understanding in John-Paul's response is that other than declaring 'common-law' status, one does not have to disclose a partner's personal info i.e. name, gender etc. Is this correct or does the poster or anyone else for that matter who is in any common-law relationship need to specify details of their partner to any other organization aside from CRA?

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    2. What I am saying is that most of the time claiming spousal status is about getting some sort of benefit, like the family rate for health care, OAS benefits or the spouse deduction on one's income tax return. In cases like this, the government agencies involved are unlikely to care whether you declare your spousal status accurately if it's not costing them a penny.

      So when might this matter? Possibly on your passport application, since your spousal status is part of your identity. I can't see why it would matter on a driver's licence application, unless you were asking your insurance company to cover an accident caused by your spouse, but this is more of an issue with your insurance company than it is with the DMV. It's probably no business of your landlord's. It definitely matters when you're applying for social assistance, because spousal status is one of the things they consider when measuring entitlement. I suppose that what it comes down to is the right of the agency to ask for personal information like that, and the potential consequences of giving them misleading information.

      However, this raises another point about when an unmarried couple are in a spousal relationship or, as they call it in BC, a "marriage-like relationship." To some extent the answer to this question is a matter of legal interpretation. What if you are roommates with benefits and no intention to be in a committed relationship? What if you think you are in a committed relationship but don't share chores, share expenses or mingle your finances? What if you're just friends who get busy from time to time and don't think of yourselves as being in an exclusive relationship with one another?

      These are all complicated questions, and you should speak to a lawyer in your neighbourhood to get some clarification. In the meantime, since you don't have to "file" your relationship with any government agency, maybe your first question ought to concern whether the asker has a right to know or not.

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  50. Is it mandatory to combine MSP for common-law partners?

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    1. That's a really good question, and I don't know the answer. Most people want to get the family rate because it's cheaper than the rate for two single people.

      I would be surprised if there was a rule that you must be on a single MSP plan. You can find out whether this is the case by contacting the Medical Services Plan people. Their website is here:

      http://www.health.gov.bc.ca/msp/

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  51. I'm on combined bc disability and widow's pension, and have met a wonderful man who's on Canada pension. We really think we can't get married, because with me on bc disability, he would lose almost almost all his pension, and it's a crying shame that it works out like this. Thankfully we can see each other every day because we live in the same apartment building, but it sure makes for separate lives. And I think by reading some of your above posts, I think I have the answer to my question. It appears from what I've been reading here, that for one of us to rent an apartment, and for the other to pay rent as a boarder, that I could lose my disability pension just like that if it was found out. Is that what I'm reading, that there is no way around this???

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    1. Any impact on the payments you're getting will be from payments that are indexed to your income. If I recall correctly, CPP survivors' benefits and CPP disability benefits are not indexed to income; if that's the case, the amounts you're getting shouldn't be affected. OAS payments are related to income. I don't think that BC Disability Assistance benefits are indexed to income, but I'm not sure. I know that there is an income test and that payments can be made for families where one spouse is received disability benefits and the other is ineligible.

      Before you make any decisions about how you live your life, first contact the agencies that are paying your benefits to check what might happen if you start a new cohabiting relationship. It would really be a shame if you couldn't pursue your new relationship because of its impact on your income.

      The website for Disability Assistance is here:

      http://www.eia.gov.bc.ca/pwd/apply.htm

      ... and the website for CPP is here:

      http://www.servicecanada.gc.ca/eng/services/pensions/cpp/index.shtml

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  52. I live in Ontario with my ex in a house I own and we both care for our child. The house is in trust with my parents. He pays me rent and there has not been a romantic relationship for over a decade. CRA has declared we are common law. Do you see any other laws under which we might be considered common law and any negative ramifications from this set up?

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    1. The law that will apply to you will be the laws of Ontario, and the few federal laws like the Income Tax Act and the Canada Pension Plan that apply to what the federal government calls "common-law partners." Under Ontario's family law legislation there will be an some exposure to a claim for spousal support but not to a claim for the division of property. However claims based on your status as common-law partners or unmarried spouses can be challenged on the basis that you're not actually spouses, given that your relationship has morphed from a romantic relationship to a business relationship.

      You really must speak to a family law in your neighbourhood to get some proper legal advice.

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  53. John Paul, I was not sure where to post this, but I think you need to start a thread on the failures of the new Family Law legislation in British Columbia. There was a recent Supreme Court of BC ruling that in layman's terms suggests that the legislation around appointing a parenting coordinator is severely flawed and that the Court of Appeal would not overturn the lower Court decision on that basis. What are things coming to when the financial costs and emotional costs of our failed legislation are being put upon those who it is supposed to help?

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    1. That's an interesting idea, thanks for the suggestion. I have written about the Family Law Act, and some of the issues I've noticed, previously. Clicking on the "Family Law Act" will give you a list of posts... but you will have to pick through them to discover the problems I point out.

      Thanks very much for letting me know about that case on appointing parenting coordinators. I'll look it up.

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    2. How does a person force changes in the flawed legislation?

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    3. Well, you can launch a constitutional challenge against the legislation by starting a law suit asking for an order under the Constitutional Questions Act that the law be struck down as violating the constitution or being beyond the constitutional power of the government to make. That's the only way you can force a law to be changed, and of course this all depends on you convincing the court that you're right.

      Other than that, you're talking about basic political action. Building a base of supporters, lobbying MLAs and MPs about the issue, doing what you can to raise the profile of the issue in the media, and so forth. Hopefully you'll create a climate where the government feels that it must do something to address a groundswell of concern.

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    4. Hi, I spoke with a lawyer about raising this as a charter of rights issue, but I was informed that an outcome in my favour wasn't likely.

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    5. I don't see this as a Charter issue. If there's an constitutional issue to be found, its about the extent to which legislation can delegate the authority of a judge to someone who isn't a judge. I think the legislation is probably valid, but this is the avenue of attack I think is more likely to succeed.

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  54. I have a 6 yr old with my ex. We were never married nor did we live together. My ex was ordered in 2012 to pay child support which he has been. My current partner and I moved in together in Oct 2014 and had our baby in Nov 2014. I also informed my ex (as per ordered by court if our status changes) about my new status. My ex is now claiming that I am in a common- law relationship and that I need to send him my current partner's 2014 tax return. Is my ex entitled to my current partner's 2014 tax return since we had only moved in together in Oct 2014 ( 6 months)? I would think that he is only entitled to my partner's 2015 tax return. I would be so grateful for your advice. Thanks so much!

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    1. In Canada, the income of a parent's new partner is almost never relevant to child support. I've discussed this issue in my wikibook here:

      http://wiki.clicklaw.bc.ca/index.php/Child_Support_Guidelines#Child_support_and_parents.27_new_partners

      Unless your situation happens to put you into one of those rare circumstances when your partner's income is actually relevant, your ex isn't entitled to any of your partner's income information.

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  55. Hi, I hope you can answer the following for me. I was married to my spouse for twenty two years and then we separated and divorced approx. three years ago. I am on disability (for life) and started receiving my CPP disability payments shortly after my ex and I separated. Although my disability was diagnosed over fifteen years ago I didn't apply for CPP disability payments earlier simply because I didn't even know this option existed until after my ex left me. Currently, I receive a small monthly disability payment along with spousal support. What happens, down the road, if I meet someone new and decide to move in with them (ie: live as a couple)? Will I lose my spousal support or will I still receive it due to the fact that I am disabled and unable to work? I keep getting different answers to this question so now I am super confused. I would love to eventually start a new relationship and move on with my life but I'm afraid of losing my current spousal support. I live in BC, Canada, if that makes any difference.

    Thanks for any help you can provide.

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    1. I'm sorry, but I can't answer your question. You should seek legal advice from a family law lawyer who's knowledgeable about CPP.

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  56. My ex and I have 2 children together a few months before getting her nursing degree we split up due to infidelity on her side. she moved out for a few months then we moved back in together for approx 10 months then she was unfaithful again and moved out. she was gainful employed as a nurse for approx 9 months of us being together. she now says that I need to pay for half of her student loan, which she says is 90k we make approx the same amount. do judges take in consideration how long I benefited from her degree? will I be paying for her loan? I didn't co-sign it. I help support her while she went to school (rent food etc..)

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  57. The law in this area is just developing under the new Family Law Act. What I can tell you is the Family Law Act says that all debt accumulating during the marriage is shared family debt, however the act also allows people and the court to divide family property and family debt unequally too, if an equal division would be unfair, as it sound like it would be in your case. You must see a family law lawyer in your neighbourhood as soon as you can.

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  58. I have read this thread and the discussions around the definition of 'spouse' for the purposes of provincial, federal, and other laws affecting these jurisdictions. My question relates these provincial/federal definitions to my Canada Student Loan: I began living with my partner in BC as of April 2014--This would make us CRA/Federally common law as of April 2015. Further, our first child was born in June 2015. My 34K canada student loan debt was all incurred before we began living together. Since it cannot be considered family debt (and I absolutely do not wish it to be considered family debt), we will be maintaining separate bank accounts, and I will be responsible for paying it off through my own income, do I have to declare myself as 'common law' to Canada Student Loans/The NSLSC? I ask because my partner's income would affect my ability to qualify for repayment assistance through the NSLSC, but since my partner will not be aiding me in the repayment of my loans, I see no reason why I should provide his income information.....to these flesh eating vipers :)

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    1. You might want to think about placing an anonymous call to the student loans people to find out what the ramifications of not being wholly truthful on your loan application might be.

      I expect that they want to know about the income of your partner because eligibility for student loans is probably measured against family income not the applicant's income. I worry that if you're not completely forthcoming about your family situation and you get the loan, they may decide that you obtained the loan fraudulently and not only demand repayment as soon as possible, but might decide that you're ineligible for future loans.

      I understand exactly why all of this would rub you the wrong way, but this is one of those things where I think you want to look carefully before leaping.

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  59. Can you have a common law relationship with someone, when you are still married to someone else? If so, what is your entitlement to assets in the common law relationship?

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    1. Yes, you can become the unmarried spouse of someone while you're still legally married to another spouse.

      Under the new Family Law Act, unmarried spouses now have the same property rights as married spouses. The property a spouse is entitled to keep is the property they bring into the relationship, plus certain kinds of property, like inheritances, that the spouse acquires during the relationship. The property that the unmarried spouses share is new property bought during their relationship plus the increase in value of the property that isn't shared. There will be some confusion about sorting out the property from the married relationship; you should speak to a family law lawyer in your neighbourhood for some proper legal advice.

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  60. Hello John,

    The two people have their own condos and waiting to get one together but for time being during the 2 years relationship they were sleeping together alternatively in their own condos and then after completing 2 years the common law partner says that they don't had any common law relationships. Because they were not sleeping at single place. Please advise and also if you know some case law on it.

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    1. There's lots of law on situations like this, but I'm not about to try to give you a legal opinion with the very limited information you have provided... or at all as a reply to a comment on my blog. You really must speak to a lawyer to get some proper legal advice. These situations are very complicated and you need an opinion that's based on your specific circumstances.

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  61. was common law for a year an bought a house he owns 2% and I own 98% I live in the home an have assumed all debt since he left the relationship which we only lived together in home the one year. now he's trying to tell me I have to pay equity of the 5 years but from what I can see on line that its only on the year he's lived in the house is that correct? I also believe that he's only entitled to his 2% an he cant make me sell my 98%. he's also now trying to tell me after 4 years he's been gone that he wants items in the house that he's never once had a interest in taking when leaving. If I'm correct I believe he only had two years to do this in right? If you cant answer any of these questions would you be able to point me to lawyer who can.

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    1. In BC, you need to have lived together to qualify as "spouses" for the parts of the act that talk about property division. If you're not spouses, the law that applies to you is the law that applies to all people who own property together, primarily the Land Title Act and the Partition of Property Act.

      If your ex owns 2% of the property, he's most likely entitled to 2% of the current equity in the property although you'll be able to argue that he owes you for 2% of your mortgage payments and 2% of the repairs and so on. As well, under the Partition of Property Act, a co-owner of property is entitled to ask the court for an order that the property be sold, although the other owners of the property have the right to say why the property shouldn't be sold.

      You really must speak to a family law lawyer to get some proper legal advice on your situation and your options. If you don't know of someone to speak to, try calling the Lawyer Referral Service. They'll hook up with a lawyer in your neighbourhood who practices this area of law, and the lawyer will charge you $25 for half an hour of her time.

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