03 March 2012

All About Separation

A fair bit of time has passed since I first posted this article and things have changed, most importantly the replacement of the old Family Relations Act with the new Family Law Act. Please visit my post "All About Separation: The 2015 Edition" for an up-to-date and expanded version of this post. Please update your links!

A lot of the people who find my website and this blog have questions about separation. How do I separate? When am I separated legally? Can I see other people after I've separated? In this post I'm going to try and answer these and other questions. If I haven't answered your question, post a comment.

What is separation?

People in a relationship separate when one or both of them decides to end the relationship. People that are just dating break up. Normally, we think of married couples or couples who are living together as separating when their relationships end, probably because most of the time someone winds up moving out.

Separation is an important event under the Family Relations Act, because the date an unmarried couple separated sometimes starts the clock running on the one-year limit within which a claim for spousal support has to be made and sometimes on the one-year limit within which a claim for child support must be made against a stepparent.

Separation will be even more important under the new Family Law Act. Under that act, separation will be what gives each spouse a one-half share of family property.

How do I separate?

A couple is separated once or or both of them has made the decision to end the relationship, said so, and then done something to carry through the intention... like stopping sleeping together, stopping doing chores for the other person's benefit and so on.

Often the decision to separate is made by both people, but it only takes one person decide to end a relationship, and a decision to separate doesn't require the other person's agreement. Everyone is entitled to separate if they wish to end a marriage or common-law relationship.

Can we stay living in the same home?

Although many people move out when they separate, others separate and remain living under the same roof. Frankly, it's a lot cheaper to stay in the same home, as long as you can stand living in such close quarters with each other.

A physical separation is not necessary to separate, there must simply be an intention to end the spousal relationship and the intimacies that usually involves.

Do I need to see a lawyer to separate?

No, absolutely not! The job of the family law lawyer is to help you resolve any legal issues resulting from the end of your relationship. The decision to separate can have legal consequences, and you might consider meeting with a lawyer to talk about those consequences, but separation itself is nothing we can help with.

But what's a legal separation?

There's no such thing as a "legal separation." There used to be something called a "judicial separation," but that hasn't been available for a long time now. For more information about that, see my post "Little Known Family Law Facts #4".

Once you or your spouse or partner has left the family home or announced that the relationship is at an end, you're separated. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Okay, what's a separation agreement then?

What people often mean by legal separation is a separation agreement. This is something else altogether. A separation agreement is a contract that people use to record their agreement about issues like how the children will be cared for, how their assets and debts will be divided and so forth. It has nothing to do with whether a couple have separated or not.

Separation agreements are not always necessary, and you can't be forced to sign a separation agreement. See the Family Agreements > Separation Agreements chapter of my website for more information.

What's the date of our separation if we can't agree?

Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for common-law couples, because time limits on claims for spousal support, and sometimes for child support from stepparents, begin to run from the date of separation. For married couples, there aren't any limitation periods that hinge on separation, but the date can still be important if there is a marriage agreement or some other contract that ties rights or duties to the length of the marriage.

The courts have talked about how to decide the date of separation. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties maintained a sexual relationship after they'd moved out and into separation homes. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."

A few other cases have also considered this issue. In Herman v. Herman, from the Nova Scotia Supreme Court in 1969, the court said this:
"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."
In Hills v. Hills, another case from the same court in the same year, the court said:
"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."
In McDorman v. McDorman, from New Brunswick Supreme Court in 1972, the court said:
"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, specially in cases where the separation may have been brought about … by enforced hospitalization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."
Simplest of all, the Ontario Court of Appeal in 1970 in a cased called Lachman v. Lachman said:
"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."
What's desertion?

Desertion is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, that arose after one spouse had abandoned the other for at least three years "without just cause." This ground of divorce has long since been abolished. These days we just rely on separation for a period of at least one year to get a divorce order.

Can I still have sex with my spouse after we've separated?

Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated. While it might cause some emotional difficulties, like prolonging the amount of time it takes to recover from a relationship that's broken down, there's nothing legally wrong with having sex with your spouse or partner. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the court decides that the care and control of the children should be managed, child support or spousal support, or how your assets should be divided. The court does not look into this sort of conduct in determining these issues. 

The only thing you really need to think about is if you are married and are asking the court to make a divorce order based on your spouse's adultery or cruelty. If you have sex with your spouse afterwards you could be considered to have forgiven your spouse for his or her conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery or cruelty.

Can I start a relationship with someone else after we've separated?

Yup. Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider your relationship to have ended and whatever obligation you have to remain monogamous along with it. If you're married, you won't be divorced until you get a court order, but the marital aspects of your relationship and the attendant expectations of monogamy will be considered to be at an end.

Having sex with someone else will not have an impact on how the court decides that the care and control of the children should be managed, spousal support or child support, or how property should be divided. The court does not consider this sort of conduct in determining these issues.

Is having sex with someone else after we've separated adultery?

Only married spouses can commit adultery. If you're married it is technically adultery to have sex with anyone other than your spouse while you are married, even after you've separated. However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can sex with someone else after separation be a ground for divorce?

Only married spouses need to get divorced. You cannot sue for divorce based on your own adultery. However, if it's your spouse who's had sex with someone else following separation, you can use his or her adultery to get a divorce, as long as you haven't already asked for a divorce for another reason like separation.

Speaking of adultery, is it a criminal offence? Can I be charged with adultery?

Adultery on its own is not a criminal offence; it's not something you can be criminally charged for.

A fair bit of time has passed since I first posted this article and things have changed, most importantly the replacement of the old Family Relations Act with the new Family Law Act. Please visit my post "All About Separation: The 2015 Edition" for an up-to-date and expanded version of this post. Please do not add further comments to this post. Visit the new article and comment as you'd like! Please update your links.

299 comments:

  1. I have stopped living with my wife because I do not want her to have to decide between me and her teen son (my step son) whom I can not live with. I would like to get back with my wife but will only do so if/when she finally kicks him out of the house. If that does not happen within the one year mark of my moving out then I will file for divorce at that time. So I am hopeful that we get back together, I do see her about once a week for some nookie (at my new apartment) but will not and can not stay in this limbo for longer than a year. Are we separated enough to file for a divorce in 8 months (it's been 4 already)????

    ReplyDelete
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    1. In Canada, you must wait for one year to file for a divorce based on separation. See the Marriage & Divorce > Divorce chapter of my website, at

      http://www.bcfamilylawresource.com/08/0803body.htm,

      for more information.

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    2. Thank you Mr Boyd, We have been living separately for 4 months now, so if we stay apart for another 8 months that will be the year required. My question pertains to the fact that we both would like to get back together but cannot as long as her son stays with her. (It is my opinion that he bullies her into doing whatever he wants and as a step father I was not empowered to control the situation.) She knows I will only wait one year living like this and that we will divorce 8 months from now if nothing changes with respect to her son. Would this constitute 12 months of 'separation' even though we both would like to be back together and are seeing each other regularly and amicably?

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    3. I'm sorry, but I can't 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 you and I can talk about your situation.

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  2. Hello: I lived in an a conflict ridden relationship for 6 years. We separated for 7 months during that time and then he moved back in for he had no where to go. We drew up an agreement that stated we were not living together as husband and wife he contributed to this document (his writing) but did not actually sign it(it is dated) but his writing is on it with him stating he agreed. He refused to move out and it was my house. He refused to move out for a year. Can I use that document to prove we were separated but living in the same house for that last year? He is applying for spousal support so it will become an issue. Thanks

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  3. Hi, thanks for sharing this one!
    Well, my own point of view about marriage is I still do believe that it is a sacred thing which unites the two individuals into one to live together until the end.

    We can't deny the fact that marriage is not an easy path to take because when they face a tough obstacle and they can't handle it effectively they will end up to be divorced. It's a saddest fact about it.

    "Adultery on its own is not a criminal offence; it's not something you can be criminally charged for." I don't agree with it and I'm sorry about it because according to the 10 commandments of God "Thou shall not covet your neighbor's wife" meaning it's a sin when you commit adultery.

    ReplyDelete
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    1. In Matthew 19:9, it is the "divorcing" party, i.e. the innocent party, who is given authority to divorce and remarry. The innocent party may divorce and remarry because it is specifically allowed or authorized by God. However, the guilty party is given no such freedom, no exception, therefore they have no authority to divorce and remarry. If the guilty party, who has been divorced by the innocent spouse, remarries another, they are living in adultery. If a husband and wife divorce for reasons other than immorality (fornication, adultery, etc.) and marry others, they are living in adultery (Matt. 5:32; 19:9; Mark 10:11; Luke 16:18).

      So this is clearly complete nonsense, as it says even after divorce the guilty party can never again re-marry - forever.

      The point you have missed that Mr Boyd appears to be making is that there is no state of Marriage between the two people that the act of adultery would break from a criminal point of view - it is a civil matter only if the innocent side wants to use it to bring the divorce closer in time (i.e. before the 1 year limit) and as they are getting divorced anyway, there is no real marriage to break in the long term it's all over.

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  4. I have been separated for almost 10 years. Could I be liable for debts incurred by my husband either currently or at the time of his death. During our marriage he had a habit of running up debt and was careless about repayment. Similarly, could he make a claim on my estate after my death.

    I'd be grateful for any input.
    Thanks,

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    Replies
    1. I'm sorry, but I can't give legal advice or discuss particular situations. I'll think about putting up a new post about how the court deals with family debt, but you should also consider talking to an estates lawyer.

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    2. Also, you might want to read a post of mine from March:

      http://bcfamilylawresource.blogspot.ca/2012/03/supreme-court-releases-decision-on-debt.html

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  5. Jane Wilson19/9/12 6:33 PM

    If I move out of our family home, and my spouse stays in the house is the house still considered my legal residence. Can I come and go to use the laundry etc and take items I need for my new home, or do I have to get his permission first? I would still be a joint owner of the house. I guess what I'm asking is, is there a difference between being an owner and primary residence?

    ReplyDelete
    Replies
    1. I'm sorry, but I can't 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 you and I can talk about your situation.

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  6. Adultery is not the unpardonable sin. Jesus fogave the woman who had been caught in acts of adultery. I am not suggesting people should sin, I am saying there is forgiveness for all sins. Stop beating people up, Jesus never did.

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  7. It has been 22 years since I was separated from my husband.I have used my maiden name ever since. We only went to court about him having visiting rights to the kids and that he had to pay maintance for them. After all this time and no court proceedings about alimony, he doesn,t have to pay me anything Right?? We both have moved on in our lives I like it that way. due to illness I am having to go on dis ability, Assitance can,t go back and get him to pay alimony after all this time right??? Thank-you

    ReplyDelete
    Replies
    1. I'm sorry, but I can't 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 you and I can talk about your situation.

      Delete
  8. I would like to know if the property is only in your husband's name what happens should there be a seperation or divorce. Do I get part of the property value. Please advise. Thank you.

    ReplyDelete
    Replies
    1. I can't give legal advice in reply to comments. However, you can find the answer to your question in the Family Assets section of my website at
      http://www.bcfamilylawresource.com/06/0600body.htm.

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  9. In BC I believe you have to be separated for a year to divorce. If we want to file for divorce and have been living under the same roof but separated do we have to prove that its been a year or more or just our say so -we dont have anything in writing or anything.

    ReplyDelete
    Replies
    1. When you apply for your divorce order (the second step after you start the legal proceeding for the divorce), you will have to make an affidavit. In your affidavit, you will tell the court when you separated. The court will not investigate the details of your separation.

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  10. I am seperated for 3 years. what is the timeline that my ex can make a claim on me or my business? I heard that after 6 years of being seperated you can get an automatic divorce. I that true?

    ReplyDelete
    Replies
    1. In British Columbia, a married couple is married until a court makes a divorce order, and the ability to make a claim to share property doesn't end until two years after the couple are divorced.

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  11. What if the decision of separation is not mutual. if i still want to work the marriage out, can my husband force separation on me by just taking off somewhere?

    ReplyDelete
    Replies
    1. I'm sorry, I'd really like to say something else but it just takes one person to make the decision to separate and end a marriage. There's really no legal means to compel him to try to reconcile.

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  12. If I am seperated from my husband but not legally and I now reside with someone else can I be considered common law after 2 years?

    ReplyDelete
    Replies
    1. There's no such thing as a "legal separation" in British Columbia; once you've moved out, you're separated. In BC you can also become common-law without being divorce from a married relationship; it's possible to have two spouses!

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    2. Is it possible to legally "refuse" to being considered as a "second spouse" if your partner is still legally married to someone else? I would rather being considered single until he divorces and I can legally marry him.

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    3. Well, that's the central problem with how the legislation in BC is worded. It's not something you get to choose or not choose; if you meet the statutory test to qualify as a "spouse" under the act, you're a spouse whether you meant (or wanted) to be a spouse or not. The only thing you can do is not live with the other person.

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  13. If I have joint custody of my children with the children residing at my ex spouses, do I need to go to court if I want my daughter to now reside with me and he objects?

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  14. what is a global separation agreement? My ex and I have a separation agreement filed with the BC courts.My ex agreed to pay 600.00 a month for child support for both my children at the time we signed the separation agreement. It does not state how much per child it just says 600.00 a month. One of my children went to live with him and he reduced the child support payments to 350.00 a month without my consent for the one child living with me at the time.I am assuming correctly that regardless of how many children are living with me my ex must pay $600.00 a month and not whatever he chooses?

    ReplyDelete
    Replies
    1. Normally "global settlement" means a settlement of all outstanding issues. As to the child support issue, you should speak to a lawyer for legal advice.

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  15. i have just found out that my Legally married separated ( wife of 8 years) has just gotten married with out a legal divorce from me what do i do about it and what are my options thank you

    ReplyDelete
    Replies
    1. I'm sorry, but I can't 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 you and I can talk about your situation.

      Delete
  16. My wife moved out last week to her own place, I allowed her 1 month to remove her property, she then began taking assets that we agreed would stay as my assets.

    Does she have a legal right to access the home at her own free will to remove items as shes sees fit? What legal right do I have to stop her?

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  17. My wife moved out in February, but we haven’t started negotiating an agreement yet. (as of March 8). We have accumulated more debt than assets during our marriage, and the debt is all in my name. I want to have that debt divided bewteen us. I understand this will be easier under the new FLA, compared to the old FRA. Does it matter that we actually separated in February? What if I am contacted by her lawyer within the next week before the FLA takes effect, will we be subject to the old legislation?

    ReplyDelete
    Replies
    1. The date of separation doesn't matter. Unless your wife commences a court action before 18 March 2013, the rules about property division will be the rules of the Family Law Act.

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  18. I recently separated from an 8 year common law relationship. During that time I allowed her son to move in..he is now 13..He receives child support from his biological father. I knew that the boy had a father so I did not take on the role of father for this boy as he had one already. I have now been given papers saying that I have to also pay child support for the boy. I never adopted him and had no wish to. I understand that I will have to pay some spousal support...but really...do I have to pay child support for someone elses child?? Any advise would be greatly appreciated. Thanks

    ReplyDelete
  19. Hello,
    If a common law couple under the Family Relations Act has been separated for less than a full 2 continuous years are they now able to bring a 'division of property' application before the court under the new Family Law Act.

    If so, are there any conditions under which this would not be likely to succeed: for example, if they both received legal advice about property division under the FRA and both were under same understanding regarding property division prior to March 18th.

    ReplyDelete
    Replies
    1. Yes, that's about it. As long as unmarried spouses separated less than two years before today they can bring a claim under the new Family Law Act. The only "conditions" to this would be if their property claims had already been resolved by a separation agreement or trial completed at some time prior to today.

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  20. Now that the laws have changed regarding the property division of common law spouses, at what point can a separated common law couple no longer raise the issue of property division.

    For example, if two people who were living together have been separated for 3 years, but during each of the last 2 years reunited briefly for counseling that was not successful (approx 70 days in each of the years) have the met the time limit for being unable to raise the issue of dividing property or is there a time limit?

    ReplyDelete
    Replies
    1. Under s. 198, unmarried spouses have two years from the date of separation to make a property claim under the new Family Law Act. Under s. 83, a separated couple can moving back in together to try to reconcile for a total of up to 90 days without the clock starting again on the two year period.

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  21. My wife and i mutually agreed to separate in April of 2005 and she paid me out for my share of our residential properties and paid out all other outstanding debts. Our divorce case is still not finalized because she wants to put into agreement that I should pay for the full amount of our 21 year old son's student loan which will he finish his course in two years. According to my lawyer, i am not liable for the cost since my son is now an adult and i am only a co-signer/guarantor for his loan. I am now living with another woman for the past 7 years and we both owned the property and i changed my status and my girllfriend to common law for the last five years. With this new Family Act Law, are we considered married now and supersedes the previous marriage from my fists wife as final? I terminated the services of my lawyer four years ago because of the legal cost.

    ReplyDelete
    Replies
    1. Unfortunately, you can be a married spouse at the same time as you are an unmarried spouse. The recent media coverage has incorrectly described unmarried couples as being "married" - they're not, but their rights are now the same as if they had been married. I encourage you to meet with someone to get some legal advice about this; the number of the Lawyer Referral Service is in the right-hand column.

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  22. My husband and I separted 15 years ago, decided not to divorce to limit the emotional outfall for out two children. My question is if I die intestate what is my separated husband entitled to by law. We have a good working relationship and both have worked to provide for the children. I have considerable assets and he has virtually none. I would like my assests to go to my children and I believe he would not object at all. Is there anything I should do legally to ensure that if I don't get the will completed before I die, that my children will inherit my assests?

    ReplyDelete
  23. How can my roommate protect himself from being sued for child support by my ex? Because he is male and we have resided in the same residance for over 2 years, my ex figures he can sue for child support.I pay my share of the rent and bills and we have our own rooms. He does not support me. What do we need to do?

    ReplyDelete
    Replies
    1. It's not quite so easy as your ex things, not by a long shot. Although you can rest easy, you should speak to a family lawyer for some more concrete information; I can't give legal advice through this blog.

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  24. I was in a 31 year common law relationship...for the past 15 years he has been the sole support financially..I have health issues and cannot work..in january he abandoned me ..hes all I have..I have no family..no income..nothing...he bought fire wood and groceries a few times and has paid a little on household bills..he left me here in a rural area with no vechicle..all along I held on to the hope and promise he would come back home but as of yesterday i found out hes having an affair and is not comming home..he tells me to get my life in order and look to assistance for help..do I have any legal rights ...how can he just abandon me with no one and nothing

    ReplyDelete
    Replies
    1. This blog and my wiki (http://wiki.clicklaw.bc.ca/index.php/jpboyd) are all about the legal rights you have. You need to do things to enforce your rights, and this blog and my wiki talk about that too.

      For good overview of your rights and how your can enforce them, go to my wiki and read the page "Family Law Basics" (http://wiki.clicklaw.bc.ca/index.php/Family_Law_Basics) and then call a lawyer. If you don't know a lawyer, call the Lawyer Referral Service. Their number is in the column on the right-hand side of the pages in my blog.

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  25. My wife and I have been married for 24 years. We have talked about and decided to separate in Jan 2013. We still live together and no separation agreements have been drawn up yet. I had some assets before we were married and wondered if the new property divisions in the new FLA ie (each spouse keeps what they brought into the marriage but not the increase in value of these assets) applies even though it was 24 years ago?

    ReplyDelete
  26. Hi

    Two questions: 1. when calculating the length of a common law relationship...do the first two years count; that is, because it takes 2 years to be considered a common law relationship, do the first two count in calculating the length of a relationship? and ,
    2. how does one know if they are in a marriage-like relationship when the definition of a common law relationship does not seem to depend upon sharing the same home

    ReplyDelete
    Replies
    1. Under s. 3 of the Family Law Act, once a couple have been together for two years they are considered to be spouses and the spousal relationship is considered to have started when they first began to live together. Being unmarried spouses usually requires some sharing of a common home, but whether the court will consider a couple to be in a "marriage-like relationship" depends on the circumstances of each case.

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  27. Hi JP,

    My ex and I were separated 5 years ago, completed and signed a separation agreement that's up for review later this year. We also divorced 3 years ago. Recently we came to terms for ending spousal support and have put together a amended legal document that will be reviewed by a lawyer at her end. Both of us (including her lawyer)have agreed to waive full financial disclosure, understand the legal consequences and have said so in the amended agreement. Is this OK to do?

    ReplyDelete
    Replies
    1. I can't give legal advice via this blog. If you want, you can call my office at 604-689-7571 and after we've checked for conflicts, I'll be happy to have a quick conversation with you.

      Delete
  28. Hi, I have been separated from my ex spouse for well over 6yrs, we had a house (granny flat) that my his mother had built for "both" of us an our child. The relationship was unhealthy so I decided to leave the home an the relationship. With nothing but the clothes on my back, an no intention of asking for anything out of our break up other then to have shared care (which has been sorted) and since then I have gotten on with life an am now married. Not long ago I had received a massage from my ex asking for money to pay for a couple of small holes in the wall of the house that happened in one of many heated arguments from back when we were together. Can he do this after 6 years of separation?

    ReplyDelete
    Replies
    1. It seems a little petty to be asking for money now, so long after the separation. I expect that the limitation period for asking for money for this has long since passed, and, as a result, that the demand could not succeed in court. However you'll need to check with a lawyer where you live for a proper answer.

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  29. Hi, When separated, are child support payments made while residing in the same house?

    ReplyDelete
  30. It would really depend on the circumstances, I think. I can imagine a situation where a separated couple who continue to live under the same roof and continue to pay for the household and children's expenses as they always had; in such circumstances child support might not be needed. You should speak to a lawyer in your neighbourhood to get a proper answer.

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  31. Hi, My kids and I are moving out and hubbie is staying on the property. The mortgage and land title are in both of our names. What legal rights do I have to come and go here, until the property is sold, other then the fact that I can't simply enter the house at my own free will.

    ReplyDelete
    Replies
    1. Well, the property is your property too and you can come and go as you please, until the court makes an order restraining you from entering the property or gives hubbies exclusive occupancy of the property. Because situations like this can become inflamed easily, talk to a lawyer in your neighbourhood to clarify your rights and explore ways of resolving this dispute

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  32. My husband and I have been living apart for 7 yrs. have one child. Nothing between us, but are wanting to get this resolved now. Does primary residence mean "where the child sleeps most"? Even though its just sleep time?

    ReplyDelete
  33. Under the new act ( March 18) is it better to be married? I have been living in a jointly owned home for 7 years with my partner - he paid a greater share than me though . He owns the business that I have managed for 20 years ( I have no title in that company ) he also owned / owns another holiday property prior to us purchasing our home. I work full time , we talk and 'live' the business outside of my paid hours . I take care of all properties , cook, clean , garden etc. It just seems unfair that say if in ten years we seperate, I walk away with only a share of our joint house. All my unpaid contributions will amount to nothing - or is all property be equally divided or just the house I half own.

    May as well get married if it is financially more secure . Thoughts

    Thank you

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  34. Is it finacially more secure to be married under the new act if you owned less than your partner did at the time you became common law ( 10 years ago)

    ReplyDelete
  35. With respect to both of the above comments, under the new Family Law Act, unmarried spouses are treated the same as married spouses when it comes to property and spousal support. Being married doesn't affect how property is divided.

    You can get a lot more information about how the new act treats property in the "Family Law Act Information & Resources" page (link at the top right corner of this page) or at my wiki at:

    http://wiki.clicklaw.bc.ca/index.php/Property_%26_Debt_in_Family_Law_Matters.

    ReplyDelete
  36. I live in California, my current wife lived in Canada and we got married in Canada 3 years ago, she moved to California 2 years ago but decided to live with her kids and family in a different town than were I live, now I decided to get divorce,,,
    1- shall I divorce in Canada or divorce in California ?
    2- I own few properties which I bough before marriage, is she entitle to any share of such properties ?
    3- Are we legally considered California marriage even if we never got married in California ?
    Thanks

    ReplyDelete
    Replies
    1. This sounds like more of a California problem than a Canada problem, and that's where you'll need to look for advice. What I can tell is that a California divorce would be valid in Canada since at least one of you has lived in California for at least one year.

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  37. I am going through a seperation and divorce and am unable to keep up with the mortgage on the house we had both purchased. I have moved to a different city and she is no longer in the house, am I able to rent the house without her approval to help pay the bills?

    ReplyDelete
    Replies
    1. I can't give legal advice via this blog. You should call the Lawyer Referral Service - their number is in right-hand column at the top of this page - for a low-cost referral to a lawyer in your neighbourhood.

      Delete
  38. My ex common law spouse wants me to pay child support and make 1/2 the mortgage payment..Is half the mortgage considered child support? I cant afford to continue doing this. She does not want to sell the house and I haven't lived there in a year...While Child support is extremely important to me to pay..I cannot continue to pay rent for where I live now, a mortgage where I don't live and child support.

    ReplyDelete
    Replies
    1. I can't give legal advice via this blog. You should call the Lawyer Referral Service - their number is in right-hand column at the top of this page - for a low-cost referral to a lawyer in your neighbourhood. I suspect there's a way that you could characterize the mortgage payment as child support, but you'll really need to speak to a lawyer about this,

      Delete
  39. when one spouse is paying spousal support to another and the other spouse moves in with another partner before the end of the spousal support agreement, do you still have to pay spousal support to that spouse

    ReplyDelete
    Replies
    1. It depends on the terms on which support is being paid and the basis of the support obligation. Since this can be a little complicated, you should speak to a lawyer in your area.

      Delete
  40. I am separated and we are splitting the share of the family home 50%. With my share I am buying an apartment. We have no separation agreement. Is this fine.

    ReplyDelete
  41. I want a divorce from my ex wife but she says she won't sign the papers? We separated over a year ago due to her having an affair, within the first month of our separation she got got knocked up by this guy. Can I file for divorce for adultery un contested? As the baby is proof!!

    ReplyDelete
    Replies
    1. I don't see why you couldn't, as long as you have proof or her admission that the baby is his and not yours.

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  42. My husband and I are about to sign our separation agreement, which has been prepared by lawyers at massive expense. We have a couple small changes but otherwise are fine with the content, but what's the next step? We can't afford any more legal fees -- do we have to file the document with someone or is it just for our own records? Thanks very much.

    ReplyDelete
    Replies
    1. Well, if you have a whole agreement done up, you could cross out the text you're changing and hand-write in the new text, just make sure that both of you initial each change, and do this all at the same time as you are signing the agreement. It's probably a really good idea to have a lawyer look at the changes you want to make to ensure that they don't contradict another term of the agreement or don't have any unexpected consequences.

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  43. My wife of 20 years had an affair with a family member 2 years ago, and she moved out of the house 1.5 years ago, as she wanted to separate but could not afford to pay the bills in the family home. There was another piece of property owned by us, and the sale is due to finalize on July 31st at which time we were going to do the separation agreement and split everything 50/50. My new partner moved into the house 5 months ago, and now my ex-wife is saying she wants cash money now (and much more than she is entitled to) or she is going to move back into the house right away. She has not had keys to the house or any rights to it in over a year, but she claims it's her right. Can she do this now just as a way of trying to get more money?

    ReplyDelete
    Replies
    1. I don't know what she can do and what she can't, but without an order or an agreement to the contrary someone who is an owner of a property normally also has the right to use and occupy that property. If this is going to frost your biscuits, you can always think of applying for an order that you have exclusive occupancy of the property; talk to a lawyer in your neighbourhood before taking a step like that.

      Delete
  44. My ex and I have signed a separation agreement which states I buy him out of the house. Once title is transferred and his name no longer on title and he receives his money, can I make him leave the home?

    ReplyDelete
    Replies
    1. Generally, the owner of a house gets to say who lives there and who doesn't, but there may be other terms of your agreement that bear on this issue. You should talk to a lawyer in your neighbourhood about your agreement and when you can ask your ex to leave.

      Delete
  45. Do separation papers need to be signed to be legal?

    ReplyDelete
    Replies
    1. In BC, we don't have separation papers. If you mean a separation agreement, that's a contract and to be binding it needs to be signed. The Family Law Act also requires each person's signature to be witnesses by someone else.

      Delete
  46. I was in a common-law relationship for 4 years, we have one son. He left without any notice, I thought we were doing great but apparently to him we weren't. But he's been gone for only a month and a half. I want him to sign over all his rights, he don't seem to care for us, he hasn't contacted me to check on our son...I've called him, left messages and he won't call me back. I'm leaving in about a month to go for a trip to the USA and I want to take my son with me....I need to apply for his passport but I'm hoping it won't take that long...I want him to sign papers and he won't. How do I apply for full custody and get him to sign over all parental rights without him. I hope you can help me....I don't have much time! thanks

    ReplyDelete
  47. In 2007 I asked my spouse for a divorce after 2 years of marriage. After over a year of battling, he finally filed for divorce with his lawyer in Alberta. I live in British Columbia and we were married in BC. I was served papers once and then everything stopped. I am assuming that he stopped payment and therefore everything came to a halt. I have not had contact with him since then, and really have no desire to do so. I had heard rumor that he was getting remarried and I was ecstatic because that would mean that he finished doing the divorce paperwork. But when I called the courts for information, nothing has been done since the first step in 2008. My question is now that several years have passed, what are my options for getting the divorce done from my end? Is it something that I can do on my own or will I have to consult a lawyer?

    ReplyDelete
    Replies
    1. You're going to have a bit of a problem with this, since he's started the divorce action in Alberta. The easiest thing would be to file a counterclaim asking for a divorce in the Alberta action your husband started. Then it'll be up to you to take the steps that need to be taken to get the divorce, and you won't have to wait on him to get things done.

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  48. I have been separated from my spouse as of July 11/13. The question I have is can I take into account the months we were separated before between December 2012 and Feb 2013. It was not a continuous separation as I went back a couple of times. The times we were separated ranged from 2 months to almost 4 months. The last time I left him was in February of this year and went back on March 15th, to then leave again in July. I would like to know if am able to use those months of separation to obtain a divorce sooner then July 2014.

    ReplyDelete
    Replies
    1. This is not a question with an easy answer. You will need to speak to a lawyer. The number for the Lawyer Referral Service is in the column at right. They'll hook you up with a lawyer for a half-hour consult for only $25.

      Delete
  49. My spouse left me 6 years ago. He moved out of the house and has never returned. I have been paying the mortgage, property taxes and all the utilities of the house, but am falling behind. I haven't received any spousal or child support for my three children. I am trying to get his name off the title of the house so that I can refinance. It was recommended that i file for abandonment of property to declare that he has abandoned our home and that I get his name off the title. Can you please direct me to a form to fill out? I have been searching for such a form on the ontario government websites, but am stumped. Any help would be appreciated. Thanks

    ReplyDelete
    Replies
    1. Sorry, I can't help. What I know about the law is largely about BC law. The laws about property change from province to province. Here there wouldn't be a simple form to fill out, you'd need to apply for an order taking him off title if he wouldn't agree to get off voluntarily.

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  50. My husband and I have just separated. We both own a house together, but have come to an agreement that he would buy me out of the house. He, however, wants me to still be on the mortgage as he will not get financing to have the house in just his name. I am pushing to get my name taken off, but I do feel bad that he may lose the house. Is this a smart thing to do? He has already defaulted on one mortgage payment already and I am worried if he defaults again, or just cannot afford to pay this will effect me as well.

    ReplyDelete
    Replies
    1. Well it does sound like your husband wants to suck and blow at the same time. Why would you agree to be on the hook for the mortgage without having the security of being on title? If he expects you to trust him, you should expect him to have trust in you.

      Delete
  51. Boyfriend and I are working on his divorce papers. He cannot remember her maiden name - more so the spelling, odd last name. Where would we go from here?

    ReplyDelete
    Replies
    1. Get a copy of his marriage certificate from Vital Statistics, that'll tell him everything he needs to know and he has to have a copy to file in court anyway.

      Delete
  52. Me and my girlfriend were in a relationship for 3 months or so, prior to that we were friends (6-8 months of friendship prior to relationship). We never lived together or were not married. She found out that she's pregnant once she went out of the country, back home for vacation.
    Long story short, now she wants me keep the baby (2.5 months pregnant) and taking a revenge against me in anger, as if it was just my fault. She wants me to pay for all her exp including her flight tickets back to Canada, her living, food, et all the expenses until the baby is born. I don't where a possible human mother would think but she wants to just hand over the kid to me after he/she is born and leave. She says she has nothing to do with the kid or me.

    Can she claim all her monthly exp, during the pregnancy, even though we were never married or lived together?? We live in the province of Ontario...

    Please advise. Thanks!

    ReplyDelete
    Replies
    1. You really need to speak to a lawyer in your community to get some idea of your potential liability. In BC, she could ask for "expenses arising from and incidental to prenatal care of a mother or child, or the birth of a child" to be covered, but the law may be different in Ontario.

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  53. I was severally abused in a marriage. so we became separated and we were separated for 10 years. during the separation period, we had nothing to do with each other. we both lived in different provinces. I met another person after 10 years of separation and I filed for a divorce. but the divorce is not final, I just had a baby for this new partner. is this wrong in family law?

    ReplyDelete
    Replies
    1. Nope, and in fact it happens all the time. Good luck with your new baby.

      Delete
  54. I am trying to set up a 'birdnesting ' agreement until my two teenage kids graduate (one is in grade 12 and I don't want to mess up his chances for university)> My 'husband' has seen a lawyer and despite me sending him links re: mediationa and the excellent B.C> law info site on doing things yourself, he is unwilling to discuss anything. I am really scared that (once again) the kids needs will be overlooked if he is going to go the 'court' route. I really don';t care about property but I do care that things are as stable as possible for the kids. Can he force me to sell the house in order to split our assets? I know he can buy me out but I can alaso (barely) buy him out if he would allow it. Do I now need to get my own lawyer ( he has the best one here in town already!) I really wanted to do things amicably and with the kids being of first importance. What are your thoughts? He has been physically adn verbally abusive toward me for years but I don't want to play that card. Thank you for your excellent site. You are a credit to your profession

    ReplyDelete
    Replies
    1. Thank you very much for your comment and your kind words, but I'm afraid that I can't give legal advice or fact-specific comments through this blog. What I can say is that, under our current system, you really can't force someone to negotiate and avoid court, even though that is often the best and most obvious course of action. However, starting a court proceeding does not mean that you are stuck going to a trial. In the supreme court, only about 5% of family claims reach trial.

      To get proper legal advice, you can call Access Pro Bono to see a lawyer for free, or you could call the Lawyer Referral Service, which will refer you to a lawyer at a rate of $25 for the first half hour.

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  55. What if a couple is seperated, and the wife moved out but both parties are on the title of the matromony home? Are they both responsioble for paying the mortgage, insururance, and property tax even if only one of them is occupying the residence?

    The house is on the market, but has not sold yet?

    ReplyDelete
    Replies
    1. Under the Family Law Act, both spouses are equally responsible for all debts incurred during the relationship. From the bank's point of view, you're certainly both responsible for a mortgage in both your names. The bank doesn't care about the Family Law Act; it has a contract it can enforce. About the other costs of maintaing the house all depends on the circumstances. Quite often both spouses will pay common costs, but there's lots of good reasons why they wouldn't. You should speak to a lawyer in your neighbourhood for some advice.

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  56. In British Columbia. My husband and I created a separation agreement together (no lawyers). We signed it and had our signatures witnessed. In the agreement it states that he would move out of the townhouse purchased by myself prior to the relationship. On June 1, 2013, he didn't move out on the advice of a lawyer but overtime he moved items out and now has not slept at the home for 7 weeks. I changed the locks and now he is trying to get back in. I understand that without an agreement spouses have an equal right to be in the home until a court order is in place. But we have a signed agreement stating he would move out. Can I use this separation agreement to keep him out or does he have a right still to be in the home until a court order is in place?

    ReplyDelete
    Replies
    1. What you have is a contract that says who gets to live in the house. If he wants to get back in, you can ask the court for an order on the terms of the agreement; you'll be asking to enforce the agreement.

      Delete
    2. Again from in British Columbia. I posted Anonymous Sept. 21 @ 14:37. I have another question for you. The separation agreement that my husband and I signed and had witnessed stated that he would move out June 1, 2013 and that I would keep the townhouse previously purchased by me but it also dealt with dividing a variety of other property and assets. In it I agreed to gift him my 2002 Honda Civic that I previously purchased and payed for prior to the relationship. However, later he said verbally (not in writing) that he didn't want the car. "He would find his own". He returned the keys for the car to me. A month later I sold the car. Am I still legally responsible to give him the money for the car?

      Delete
    3. You should speak to a lawyer in your neighbourhood to get proper legal advice. If you want, you can call the Lawyer Referral Service (their number is in the column at the right-hand side of this page), and they'll hook you up with a local family law lawyer who will charge $25 for a half-hour consultation, and that may be all the time that you need.

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  57. Question from British Columbia: My common-law husband had a 15 month affair that only ended after I found out, so I'm leaving at the end of the month. He wants to reconcile, and is hoping this is a "temporary" move for me. Although I've not stated that the relationship is over, I've permitted him this fantasy, as it is simply easier for me right now.

    I have drafted a separation agreement, but he refuses to sign. I assume that at some point I will have to simply state it is over. I had sent him an email earlier this month, insinuating separation, therefore hoping to define a separation date.

    My concern is that of a financial nature -- I fear he will take out a loan, as as his common-law spouse, I may be liable if he defaults. How can I protect myself if he won't sign an agreement?

    ReplyDelete
    Replies
    1. There are things you can do, however you really have to speak to a lawyer in your neighbourhood to get a proper answer.

      Delete
  58. In British Columbia. My husband and I signed a separation agreement April 27th dealing with who will live in the home and all of the property. It states that he agrees to move out on June 1st. He didn't actually move out until August 3rd. He has left a few items in the home - mattresses, 2 cabinets and a pull out couch. How long do I legally need to hold onto these items for? Is there a process I can follow to protect myself if he doesn't get his items and I remove them myself?

    ReplyDelete
  59. If im still legally married but, separated from the other person, and now live with someone else can I claim common law with this new person?

    ReplyDelete
    Replies
    1. "Claim" makes me think that you're asking about your status for the purposes of the CRA. You should call them. Their rules are different about many things, and it wouldn't surprise me if they didn't allow married persons to claim common-law partner status with another person before they are divorced. You should call the CRA for a property answer.

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  60. Can Canadian separated man live with another foreign woman and declare her as a common law partner in a visit visa application to support her multiple visit visa to Canada?

    ReplyDelete
    Replies
    1. That's a question about immigration law, and I'm afraid I don't know the answer. Try Citizenship and Immigration Canada at http://www.cic.gc.ca/english/index-can.asp.

      Delete
    2. This comment has been removed by the author.

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    3. Accused of what? Having a married spouse while you have an unmarried spouse happens quite frequently, often without people realizing it, and isn't a crime.

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  61. I am in Canada. I have been divorced from my ex-wife for 4 years. For 6 years before the divorce, we had an international student homestay in our house. The charge was $30,000 per school year. In August, just days before our student was to arrive to finish grade 12, my wife out of the blue asked for a divorce. I later found out she was having a affair. As a result of the ensuing chaos, the student claimed it was not a good situation for her and she refused to pay the fee for the year. Essentially, we lost the $30,000 because of my wife's indiscretions. However, it totally slipped my mind to address this loss when we wrote up the separation agreement. Is there any way to revisit this now and try to get $15,000 back from her as a result of our losses due to her behaviour?

    ReplyDelete
    Replies
    1. Four years is an awfully long time to wait until bringing this up. Your first step will be to look at the settlement documents. If there's a line to the effect of "this is a complete settlement of all property and debt issues," you may be stuck. You should speak to a lawyer in your neighbourhood to get some proper legal advice; if you're looking at getting perhaps $15,000 back, it's worth a $400 consultation.

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  62. referring to the following information provided in your website, is it not contradictory to say that one is supposed to stop sleeping with his/her spouse after one is separated while saying it is still okay to have sex with his/her spouse? Would the court say, e.g. if you have sex with your spouse for more than once a month, then you are not considered separated? This seems absurd to me.

    How do I separate?

    A couple is separated once or or both of them has made the decision to end the relationship, said so, and then done something to carry through the intention... like stopping sleeping together, stopping doing chores for the other person's benefit and so on.
    Can I still have sex with my spouse after we've separated?

    Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated.

    ReplyDelete
    Replies
    1. Sure, that is contradictory. The point I was making is that the court looks at a wide range of facts to decide whether a couple is separated, and whether they're still having sex is one of the things that might lead a court to conclude that they are separated. However, say the couple have moved into different homes, separated their finances and started dating other people, but still had sex from time to time. The court might say that they mean to be separated and are separated even though they still occasionally have sex.

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  63. I have been managing my spouse's investments and now that we are going to be separated, I would like to receive a fee for continuing to help him. I understand this will be taxable income to me and that's okay for me. But will this arrangement affect his non-resident status? Obviously, he doesn't want to have any tax implications for him if he agrees to pay me for helping him. thank you!

    ReplyDelete
    Replies
    1. This is the sort of question that you'd want to bring up with a tax lawyer and an immigration lawyer.

      Delete
  64. A friend of my mothers is going through a divorce and her ex is showing up in her house without any warning/notice. She would like to keep him out (or at least have him knock at the front door) but apparently she can not change the locks. Prior to her husband moving out of the house he had moved into the basement apt, is it reasonable that she bolt the inside door from the basement ? That way he still has access to the area of the house he had previously but she would get a bit of security in her part of the house.

    It does seem ludicrous that he can walk in on her whenever he pleases ...

    ReplyDelete
    Replies
    1. She could apply for a protection order that would stop him from entering her space in the house, or should could apply for an order that she have "exclusive occupancy" of the house, in other words, an order than only she can live there.

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  65. my common law husband and I own a house together and live in it together but not together I live upstairs and him down his job takes him away and I am glad. I want to move out a do not want to have to pay bills at both places, should I see a lawyer I would like to have him buy me out or sell the home I just don't want to fight anymore and all he does is yell at me. please help

    ReplyDelete
    Replies
    1. I would see a lawyer. You need to get some proper legal advice about what your rights and responsibilities are.

      Delete
  66. I have been divorced from ex husband for 7 years due to adultery on his part. During those 7 years we have been trying to reconcile on and off. I have tried to move on but in 2012 after my seperation from the military my ex husband wanted to reconcile and move me into his home with our 9 year old daughter. As an attempt to save my family, i agreed and moved in. I have resided at his home with him and our daughter for a year and after finding out he was involved with another woman while involved with me, he decided to kick me out without 24 hour notice or reasonable time to find another residency or to gather all my belongings, can he do this? Do I have any rights?

    ReplyDelete
    Replies
    1. That's a tough one. You and he are divorced and you didn't live together for long enough to become spouses when you moved back in. If you're not on title of the house and were paying rent, you might be protected by the land/tenant laws about evictions, but if you weren't paying rent you're a guest whom he can ask to leave whenever the mood strikes him. If you are on title of the house, you're an owner too and he can't make you leave without a court order. Whatever is going on, he doesn't have the right to keep your stuff. You could try calling the police, but if they won't help and he won't give it back voluntarily, you make have to apply for a court order that he return your things to you.

      Because the facts are a bit complicated and you have a number of options, you should really speak to a lawyer about this.

      Delete
  67. Me and my boyfriend have been living together for a year and a half, can she sue me for child support? If so can I get a co-habitat agreement with him to stop her from doing this?

    ReplyDelete
    Replies
    1. Assuming you're asking about your boyfriend's ex, the new act says that a stepparent can't be sued for child support until the stepparent and parent have separated.

      Delete
  68. I live in Nova Scotia, if and when my spouse dies am I responsible for his bills, etc mastercard. My name is in no way on these accounts.

    Kind Regards,

    ReplyDelete
    Replies
    1. You really need to talk to a family law lawyer in Nova Scotia for advice on this. In BC at least, it is your spouse's estate that would be liable for the bills, not you.

      Delete
  69. I live in BC. I purchased a property which is solely in my name in December of 2011. I did not move into the residence until mid January of 2012 as it needed some work. My boyfriend moved in around that time or shortly after perhaps the end of January. He did not contribute anything toward the down payment of the home & is not on title. His credit is bad & he has no savings.

    We have never gotten along & I've been trying to get him to leave ever since. I am in the process of getting a restraining order & have changed all the locks & thrown him out a few weeks ago. He doesn't work & is a heavy drinker & drug user. He is threatening to take my home from me & stick me with all his debt as he has not filed his in over 15 years. I have listed the home for sale in order to get rid of him as he refused to leave & the police haven't really done much until recently as the violence is escalating.

    The Rcmp have told me to get a separation order as we are considered common law after 6 months. I'm so confused as your site says 2 years and we aren't quite there yet. Please help

    ReplyDelete
    Replies
    1. I'm sorry, but I can't give you legal advice; in your circumstances, you really should see a lawyer as soon as you can.

      What I can tell you is that there is no such thing as a "separation order," you may be looking for a protection order. And although the RCMP may know the Criminal Code backward and forward, they don't get much training in family law. In BC, you are an unmarried spouse, what some people call common law, after two years. The two year threshold is even more important under the new Family Law Act, as unmarried spouses are also entitled to share in family property and family debt!

      Please see a lawyer as soon as you can.

      Delete
  70. Thank you! That's kind of what I thought you would say. Will be trying to get in touch with a lawyer asap. Who is good with this sort of stuff? The RCMP filed my protection order Xmas eve, hopefully it will get processed soon. Cheers

    ReplyDelete
    Replies
    1. You should speak to any lawyer who practices all or mostly family law. He or she will be able to give you good, accurate information.

      The RCMP have not filed a protection order. That's something you do, after you have started a lawsuit against your ex in the Provincial Court or the Supreme Court. They may be recommending a peace bond to crown counsel. That's an order available under the Criminal Code.

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  71. my commemts are
    Can I sue the adulteress( mistress for having a son with my legally married husband) in tort /civil law courts or in family law . I warned her before .

    2. am I entitled to be informed by my husband / know about communication that goes on between the adultress and my husband about the affair child

    ReplyDelete
    Replies
    1. I've replied to the comment you posted to my article "Unmarried Spouses Can't Escape Family Law Act."

      Delete
  72. Hello, my fiance was served his divorce papers in July. He sent them back to his soon to be ex, and she is stalling on finishing the process. We wish to marry soon, and need to know what we can do to expedite the process, if anything. I have read all your pages ( you're a wonderful resource, thank you so much ) and have noted something about filing a discontinuance and starting all over by him filing. His issue is, he is in a Federal Correctional Facility in the US. Any advice you can offer would be extremely appreciated.
    thank you..

    ReplyDelete
    Replies
    1. Thanks very much for your kind words, and your comment. The problem you're having is speed. I'll try to answer your question, but if you're anywhere outside of British Columbia my information will not be accurate.

      You don't need someone's cooperation to get a divorce. You file the Notice of Family Claim in court and have your spouse served. He or she will have 30 days from the date of service to file a Response to Family Claim in court. If the response isn't filed, you can ask the court for an order on the terms you've asked for in your claim, which may be for more than just a divorce. Things can be delayed if he files a response and then sits on it. However, if he doesn't reply, you're good to go.

      Now, if you and your spouse talked about getting divorced and you started a joint divorce claim, it'll be a pain if he won't sign the necessary paperwork. You would have been better off doing it as a sole claim. In a case like that, you'll have to withdraw from the joint proceeding and serve your spouse with a counterclaim asking for divorce. You'll then have to apply in court for the divorce. That could probably be done in two months from start to finish if you really hustle.

      If your wedding date is looming, don't mess around. Go to see a lawyer in your neighbourhood as soon as you can for some proper legal advice. The court will sometimes expedite processing the divorce paperwork, but it generally doesn't consider a pending remarriage as a good reason to do so.

      Good luck.

      Delete
    2. You're very kind, thank you so much. I am in fact in BC, and as luck would have it, (and divine intervention I believe) she filed the papers in court this afternoon, so we are good to go. Happy New Year :)

      Delete
  73. My husband changed his address of the home we own together, can I ask him to leave legally?

    ReplyDelete
    Replies
    1. I'm afraid I don't know exactly what you mean. However, regardless of what's happening to the address of your house, you can ask him to leave whenever you'd like. The problem will be what happens if he says no and refuses to leave. If that happens you may have to move out yourself or ask for an order that only you are allowed to live in the house. You should speak to a lawyer in your neighbourhood for some proper legal advice.

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  74. this is on behalf of my boyfriend, Him and his ex have been separated for 6 yrs now. They have only a verble agreement. Now that he wants to go forward with his life he wants to make things legal. Can in anyway can she go after him for back child support or spousal support for the last 6 yrs. even tho he paid her out a lump sum and has paid half of all his kids clothes and anything else l They have shared custody of there kids.

    ReplyDelete
    Replies
    1. Unfortunately, yes she can. She may not succeed, but she can try. However, if they've lived at peace for the last six years, maybe she'll be okay with it. Your boyfriend should see a lawyer as soon as possible, and start collecting any letters or emails he may have that talk about the deal they made.

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  75. Me and my ex were living common law for 11 yrs have 2 children together. Within that 11 yrs started a business 8 yrs ago but because my name is no where on business according to lawyer I dont technically own business. Dont actually want business think it has more debt than assets anyways. My dilemma is we have been split for 2 1/2 yrs and he will not sign papers to sell house which I own half of cause he runs his trucking company out of my garage. Can I have his business removed from the property?

    ReplyDelete
    Replies
    1. The problem is that the house is owned by both of you, and if he ran the business out of your house while you were together it'll be difficult to get the business out if the house now. However, as a co-owner of the house, you can apply for an order that it be sold under the Partition of Property Act. You should speak to a lawyer before doing anything, perhaps the lawyer you consulted about the company.

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  76. Hello,

    My husband left me on Halloween 2013. He decided he no longer wanted to be married. He stayed for 1 month in a friends apartment and decided he would go back to his mum and dads for free rent in Dec, where he still is. We lived together in a rented apartment in an expensive area of town in BC, and it was obvious from the beginning, and agreed upon that neither could afford the rent separately. The tenancy was given up Dec 15 after I stayed until then. I asked my husband to take out all the things he wanted before he left for his Ontario parents places and to sell items of furniture I would not be able to store. He placed two adverts for 2 items but nothing else. He is not making any plans to come back as yet.
    When he left, he abandoned the rest of our belongings with no more help to get rid of furniture and personal items, or for cleaning up the apartment to help me get the apartment ready for new tenants and the hand over.
    I had to move to my sons place that is already fully furnished and is now over flowing with our furniture and belongings.
    Knowing this my question is do I have the right to sell the furniture and items? If he abandoned them knowing I was moving somewhere I can't use the items, is that relinquishing his rights? He also said before he left that he will move to a studio apartment and would not be able to take more furniture. He did take a sofa bed and electronics that are important to him.

    ReplyDelete
    Replies
    1. You really must to speak to a lawyer before you do anything. The stuff that your husband left behind is probably "family property" in which you each have a one-half interest. In the circumstances it seems reasonable that you could sell it, but if you sell it too cheaply I can imagine your husband making an argument that you owe him half of the real value of the property. But that's hard too, because how would he establish the market value of the property you sold if it's more than a year or two old? On the other hand, maybe he'd agree you could sell it?

      Either way, you really need to speak to a lawyer to get some proper legal advice.

      Delete
  77. My wife of 20 years decided to separate, and I signed a child support (NOT alimony or spousal support) agreement which expired once he graduated. I lost my job several years later, and was unable to make child support payments until he graduated. Now 15 years later I just want to end this and get a divorce. Child has graduated, and I still have minimal income. Should I expect any legal problems in just getting a divorce?

    ReplyDelete
    Replies
    1. I'm sorry but I can't give legal advice through this blog. Whether you should expect any legal problems is a very big question and the answer will depend on the details of your current circumstances and your wife's views on the matter. You should speak to a lawyer in your neighbourhood before you start the divorce proceeding.

      Delete
  78. Hello, My ex and I have been separated for 2 years, and I'm in the process of filing for divorce. Due to her infidelity, I no longer wish her to carry my name but she is refusing to change it. We're in Ontario, do I have any legal recourse with this issue?

    ReplyDelete
    Replies
    1. I have no idea what the law on this might be in Ontario; the rules about names and changes of name are specific to each province. In British Columbia, you would be unable to compel her to change her name.

      Delete
  79. I have 2 children of my own, my ex had one. We lived together in a house he bought while we were together. He got into a car accident and I traded in my paid off SUV on a bigger suv in his name and we shared it as he worked away. When we separated I had to get a loan out for a new car. Do I have any legal right to getting my trade in value back for that car? It was $6000. Can I put a lean on it? Thank you.

    ReplyDelete
    Replies
    1. I'm sorry, but I can't give legal advice through this blog.

      I talk about the rules on property division here:

      http://wiki.clicklaw.bc.ca/index.php/Property_%26_Debt_in_Family_Law_Matters.

      I talk about the ways property can be protected before and after separation here:

      http://wiki.clicklaw.bc.ca/index.php/Protecting_Property_%26_Debt_in_Family_Law_Matters.

      A court can make an order stopping the car from being sold, and it may - though I doubt it - be possible to register a lien against it under the Personal Property Registry. Personally, I've never done that as court orders are usually more than sufficient.

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  80. I left my husband 15 years ago when I discovered he was a pedophyle, along with having a major drinking problem. Are we considered divorced now or do I have to get a divorce. There is no property or children to divide up or fight over, I don't want anything of his.

    ReplyDelete
    Replies
    1. Unfortunately, you're not divorced until a judge makes a divorce order. That's true no matter how long you've been separated or how good the reasons were for your separation. You can get more information about divorce from my wiki, here:

      http://wiki.clicklaw.bc.ca/index.php/Divorce

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  81. This comment has been removed by the author.

    ReplyDelete
    Replies
    1. I'm sorry, I don't know anything about the law in New York. This blog talks about the law of British Columbia, Canada. Here your dad would need to get divorced first, and that would require starting a supreme court action and having his wife served. You need to get your dad to talk to a lawyer in his neighbourhood.

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  82. If we are separated but still living in the same house as friends ,sharing bills together and the mortgage but living separate lives , Can I sponsor my common law to come over from the U.S.A. to live with me in this situation?

    ReplyDelete
    Replies
    1. That's a toughie, and it's certainly more of a immigration question than a family law question. Off hand, I would kind of expect the immigration authorities to see an actual divorce from your husband before assuming that you are in serious relationship. They're kind of uptight about things like that, and very nervous about bogus marriages made for immigration purposes. As well, you're not "common law" under BC law (we actually call it being an unmarried spouse) unless you're actually living together. Talk to an immigration lawyer, please.

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  83. is there a form to fill out for a quick divorce. My wife & I have been separated for over 26 years and have yet to fill out the proper paperwork to end it. I would like to get remarried and would like this to be over quickly.

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    Replies
    1. Sure there is, but it's not a form it's a bunch of forms, and it isn't quick, unless by quick you mean two to four months. You can get the forms plus a description of the process on my wiki here:

      http://wiki.clicklaw.bc.ca/index.php/Divorce#The_do-it-yourself_divorce

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    2. Hi, I would like to know about what will be the effect on opening a business a sole or corporation After separation. I am separated in Sep.2010 and opening a business in 2014. My Ex filed for divorce and we will finalize it this year (2014). Will she has a drastic impact on my business. How can I protect my business from her if she decided to drag me back

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    3. That's not an easy question to answer. Most of the time, starting a new business so long after separation would be okay... unless there are *any* claims about property that are unresolved. Before you do anything, you must talk to a family law lawyer in your neighbourhood to get some proper legal advice.

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  84. If neither me or my wife file for a divorce but dont live together for two years will we still be legally divorced in Pennsylvania. Email ur answer at frogger153113@gmail.com please

    ReplyDelete
    Replies
    1. Sorry, but I don't know the first thing about the law of Pennsylvania; this blog concerns the law of British Columbia, Canada. Perhaps another reader will be able to help.

      If you can help Anonymous, please drop him a line to his gmail account.

      Delete
  85. I separated from my ex in May of 2013 and we are currently going thru mediation. In the meantime, I will be relocating to a different province in a few months - hopefully after the separation is finalled. Is my relocation to a different province (NS) from BC going to have any impact on me filing for divorce?

    ReplyDelete
    Replies
    1. Yes it will. The Divorce Act requires you to have lived in the province in which you are asking for the divorce for at least one year before you start the court action. If your ex stays in BC, he or she can file for the divorce whenever, as long as your ex has lived in BC for at least a year.

      Delete
    2. Financial disclosure during mediation - if my ex does not fully disclose his small business' income (ie. pocketing cash sales), would that not mean he's breaking the law and therefore the agreement could be null and void? Legally could I get the CRA involved?

      Delete
    3. Well he'd likely be breaking the requirements of the Family Law Act that he provide "full and true information," but he'd not be "breaking the law" in the sense that he's committed a criminal act. If he didn't give you accurate financial information, it doesn't mean that the agreement is automatically void; if you've signed it, it'll be presumed to be binding on both of you until a judge orders (or you and he agree) that the agreement is canceled.

      As for the CRA... sometimes reporting a spouse for tax issues is a bit like shooting the goose that lays golden eggs, you know?

      You should speak to a lawyer about both the agreement and reporting your spouse to the CRA. If you haven't signed the agreement yet, you should see a lawyer as soon as possible.

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    4. Thanks John-Paul for your response. Looks like I'll be making a few calls on Monday!

      Delete
  86. Apartment is in my name. Girl friend has a peace bond on me. I am told I cannot go within 100 feet of her. She is in my apartment , how do I go about getting my belongings. I live in Fredericton, New Brunswick.



    ReplyDelete
    Replies
    1. You'd probably apply to temporarily vary the peace bond so you can get your stuff. Speak to a criminal law lawyer in your neighbourhood.

      Delete
  87. In BC, my ex-husband and I are separated and he has visitation with our 3 year old son 2 times during the week and every other weekend overnight. Is there a law that requires my ex to give me the address where he is currently living?

    ReplyDelete
    Replies
    1. No, there's no law that says exactly that. However, it's reasonable that you would know where your child is sleeping. Unless there's a protection order or a peace bond or something that's requiring you to stay away from him, I think you'd be entitled to know. If he won't give you his address voluntarily, you could apply for an order that he give you his address. You should speak to a family law lawyer in your neighbourhood to review the history between you and your ex since separation and talk about your options.

      Delete
  88. In BC, My ex has contacted me and we have been separated for over 3 years, last year in august2013 we signed the separation agreement to go our separate ways, we were never married and only considered common law, no children... I had a lawyer draw up our separation agreement and it is finalized... part of the separation agreement states ""SEPARATE AND APART

    2. The parties shall live separate and apart and be free from the control of each other.

    3. Neither party shall interfere, directly or indirectly, with the other or the friends, relatives, or associates of the other.""

    last night she contacted me while trying to find a mutual friend of ours, what can I do about this as I really want nothing to do with her, I am in a happy relationship and do not want my ex to interfere with my life any more... is she in breach of the agreement? if so what does that actually mean?

    ReplyDelete
    Replies
    1. These clauses are part of most lawyers' standard separation agreement, and their usefulness is not entirely clear. Partly they're meant to address an old principles of the common law that's been extinct for at least 150 years — the duty of wives to live with their husbands — but now they more or less suggest an obligation to leave each other alone and to not interfere with each other's new relationships.

      However, they are still terms of your agreement that are enforceable like any other term. But it's not the sort of thing I would take to court... it's hard to see how a telephone call could be construed as "controlling" or as "interference." Even if it were, what would the court do about it? Probably not much.

      Most of the time a simple "please don't contact me anymore" will do.

      Delete
  89. Would you happen to be knowledgeable about Quebec law?

    ReplyDelete
    Replies
    1. Sadly no. However, you can find an English translation of the Code Civil here:

      http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=2&file=/CCQ_1991/CCQ1991_A.html

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  90. me and my wife have been separated for 3 years now everytime our divorce date comes up she brings something new up to prolong this divorce how do I make it be over with

    ReplyDelete
    Replies
    1. Well, I don't really know what's going on for you, but if nothing else is going to get things to an end, you may actually have to set your case for trial. That's a sure-fire way to get a final order, but it is kind of an extreme step. You should talk to a family law lawyer in your neighbourhood to see if there are any other options, and what the potential consequences of a trial might be.

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  91. I live in BC. My common law partner and I have decided recently to separate. We own our condo together and have decided to remain living together for the time being. How much time do we have to have a separation agreement written up and filed?

    Thank you.

    ReplyDelete
    Replies
    1. There's no deadline to sign a separation agreement, in fact you don't even need a separation agreement and if you do get one, you don't even need to file it.

      There are, however, deadlines connected with your separation after which you won't be able to ask each other for spousal support or for a share in property. Assuming you and your partner qualify as spouses under the new Family Law Act, you have two years from the date of separation to start a court proceeding for spousal support or the division of family property. You could also deal with this by a separation agreement, but if you drag your feet on the agreement too long, you'll find yourself unable to start a court proceeding.

      Please talk to a family law lawyer in your neighbourhood.

      Delete
    2. Thank you for your quick response.

      We have been in a common law relationship for over a decade and from my understanding, we qualify as spouses under the new Family Law Act..... correct?

      Between the two of us, we have already come to a verbal agreement as to how we will deal with spousal support and the division of property. We will eventually have this written up in a separation agreement.

      From my understanding, a separation agreement is only enforceable if it is filed with the courts... Is this correct? I'm not quite sure what the pros and/or cons are of filing a separation agreement with the courts....

      Thanks again!

      Delete
    3. I'm sorry, but I can't give legal advice, particularly about the nature of your relationship. However, the legal information I can give you is that separation agreements are contracts and are enforceable such whether they're filed in court or not. You can get more information about separation from my wiki at:

      http://wiki.clicklaw.bc.ca/index.php/Separation_Agreements

      You can get more information about how agreements are enforced here:

      http://wiki.clicklaw.bc.ca/index.php/Enforcing_Family_Law_Agreements

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  92. My wife and I signed a legal separation agreement. We did a 50-50 split of the assets. Now she has hired a lawyer and wanting something not agreed in the separation agreement i.e. spousal support. Her lawyer has since put a lien on my home. What is my recourse?

    ReplyDelete
    Replies
    1. I'm sorry, but I can't give legal advice through this blog. You should speak to a lawyer immediately get some information about your situation. You can see a lawyer for free through Access Pro Bono or you can see a lawyer for 30 minutes for $25 through the Lawyer Referral Service.

      Delete
  93. My wife and I were married for twenty years and separated over two years ago. We both signed a separation agreement. The house was sold and the assets were equally divided and all outstanding debt was satisfied. We then purchased our own personal properties. I pay child support and maintenance support, signed for two years as the child will be of age and will not continue further education. The child now lives with me and has done so for one year but I continue to make the child support payments to my ex-spouse. We both have careers i.e. my ex-spouse and I. She has now changed her mind and hired a lawyer to contest our original signed agreement and maintains that she requires more money. I had to take a mortgage out to buy my property but my ex-spouse could have bought her property out and out with the funds she received but instead took a mortgage out and spent the balance of $100,000 on personal items. She now has accumulated more debt thus the reason she now is after more maintenance money outwith our agreement. The lawyer has put a lien against my property. What do you suggest?

    ReplyDelete
    Replies
    1. I'm sorry, but I can't give legal advice through this blog. You should speak to a lawyer immediately get some information about your situation. You can see a lawyer for free through Access Pro Bono or you can see a lawyer for 30 minutes for $25 through the Lawyer Referral Service.

      Delete
  94. After catching my husband cheating on me for what I found out was for two and a half years, coupled with a VERY unhappy marriage anyway, I indicated that I wanted a separation. We have gone through the process of separating all our monies, bank accounts, the house bills are now in my name, I have bank approval to buy him out of his half of the house and he had agreed to all the terms in the Separation Agreement that we drafted up ourselves. He asked for some time to find a place and agreed on a date to move out - even go live with his parents in necessary. Something has happened and although he is no longer (so I'm told) with the woman he had the affair with, he has said he wants to save the marriage and isn't willing to sign the papers or move out. I am extremely unhappy and do not want to save the marriage and very close to not even wanting to save any sort of relationship at all with this man. We have not even slept in the same room for almost four years now. My understanding is that like in business, there is a Motion or a "shot gun clause" within Family Law that would allow me to either force our verbal agreement or make him buy me out of the house and our son and I will leave. Do you know where I can find information on such "Motion" that I'm referring to? With thanks!

    ReplyDelete
    Replies
    1. I'm sorry, but I can't give legal advice through this blog. If you are prepared to start a court case against your husband, you can ask for an order that you have "exclusive occupancy" of the home. You'll have to start the court case in the Supreme Court.

      You can get more information about starting a court case from my wiki here:

      http://wiki.clicklaw.bc.ca/index.php/Starting_a_Court_Proceeding_in_a_Family_Matter

      You can get information about applying for an order here:

      http://wiki.clicklaw.bc.ca/index.php/Interim_Applications_in_Family_Matters

      You should speak to a lawyer immediately get some information about your situation. You can see a lawyer for free through Access Pro Bono or you can see a lawyer for 30 minutes for $25 through the Lawyer Referral Service.

      Delete
    2. I appreciate that you're not able to offer legal advice and certainly appreciate your response - I was mainly explaining my situation in order to see if you were able to provide or point me in the direction of information about this "Motion" (or maritable "shotgun clause"), if indeed it exists?? Or is the "Motion" I'm seeking called this "exclusive occupancy" you're referring to?? Again, with thanks!

      Delete
    3. No, there's no shotgun clause.

      Asking for an order is called making an application; an application is sometimes called a motion. To make an application you have to start a law suit; once you've done that, you can make your application.

      To get an order that only you can live in the house, you'd have to start a law suit against your husband, then apply for an order that you have exclusive occupancy of the house.

      Delete
  95. My friend wants a divorce but husband threatens harm she is living and now having a baby to her new partner. Can her husband make a claim on their farm assets which are her new partners assets if she does not divorce

    ReplyDelete
    Replies
    1. I'm sorry, but I can't give legal advice through this blog. The law that applies to your friend's situation depends entirely on where she lives.

      Delete
  96. if my ex husband moved out over a year ago what rights does he have if he is saying that he is moving back in and forcing me and my daughter out of our family home?, can I take everything if I have a written letter from him stating everything in the home is mine?

    ReplyDelete
    Replies
    1. I'm sorry but I can't give you legal advice.

      What I can tell you is that if the house is in both your names, both of you have the right to be there. If you don't like the idea of him coming back, you may have to start a court action and ask for an order that only you have the right to live in the home.

      You should speak to a lawyer in your neighbourhood as soon as you can if you're dealing with threats like that. Access Pro Bono will give you a half hour meeting for free, or you can call the Lawyer Referral Service and you'll get a half hour of a lawyer's time for $25.

      Delete
  97. I found out my husband of 26 yrs was cheating a few months ago, he works out of town and I hear he is coming back to town for a week next week. can I leave for the week he is here? or do I need to "stand my ground", the house is in both our names. I'm not Forfeiting my rights to the house am I? I cant see him and am afraid to be here.
    thanks

    ReplyDelete
    Replies
    1. If the house is in both your names, you are still an owner whether you leave the house for a day, a week or a month. However, what mostly worries me is that you're afraid of him. Go speak to a lawyer in your neighbourhood. Ask about protection orders as well as orders that you have the exclusive right to live in your house.

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  98. That means my previous common law partner can live with me in a same house even we are not common law partner now, cause we bought house together, but we separated last year, we will do tax thing recently, I wonder if CRA admit our separation when we still live together, thanks your help.

    ReplyDelete
    Replies
    1. Don't assume that the principles and rules of family law apply in relation to the CRA.

      Delete
  99. My wife and I are currently separated, but living in the same house, we have no children. She has been showing signs criminal activities lately and I am suspicious of her being the one who punctured and flattened all of the tires on my vehicle while I was at a friends house. I called the cops and they took a statement about my thoughts. We have registered a separation agreement at the court registry and she will be moving out of the house in a month or so. My question is this, if in fact it was proven that she was the one who punctured my tires, does this affect any legalities towards the separation agreement and division of property. Is there a way to have her removed from the home before the day she moves out.

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