Living together

If you live with someone without being married, people say you are in a common law relationship or are cohabiting.

In 1999, the Supreme Court of Canada decided that people who live together in a same sex relationship have the same rights and obligations as opposite sex common law couples. When this booklet says “common law couples” it means both opposite sex common law couples and same sex common law couples.

Property

Common law couples do not have the same rights as married couples to share the property they bought when they were living together. Usually, furniture, household belongings and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them to the relationship.

If you have contributed to property your partner owns, you may have a right to part of it. Unless your partner agrees to pay you back, you will have to go to court to prove your contribution.

Support

If your common law relationship ends, and you do not have enough money to support yourself, you can ask your partner to pay support. You can ask for support for yourself if you have been living together for three years, or if you have lived together for less time and have had or adopted a child together. If your partner says no, you can to go to court and ask a judge to decide if you should get support.

If you and your partner have a child together, you can ask for support for that child. Children of parents living in a common law relationship have the same rights to support from their parents as the children of married couples. If your partner will not pay support, you can to go to court and ask a judge to order your partner to pay support for that child. The amount of support is set under the Child Support Guidelines.

As part of a support order for you or your child, you may also ask to stay in the home you shared when you lived together. The judge can order this even if you do not own the home, or if your name is not on the lease. This is different than for married couples. Married couples automatically have an equal right to stay in the home.

If you do not get support, you may not have the right to stay in the home if it is not yours.

Couples in a common law relationship can sign a cohabitation agreement to protect their rights.

A cohabitation agreement can spell out what you both want your financial and family arrangements to be. It can say who owns the things you buy while you are living together. It can say how much support will be paid if the relationship ends and how your property will be divided. It can say who has to move out of the home if the relationship ends.

It cannot say who will have custody of, or access to, your children if your relationship ends. You cannot decide this before the relationship is over.

Both of you must sign a cohabitation agreement in front of a witness for it to be legal. The witness must also sign the agreement. Once you have signed a cohabitation agreement, you must follow what it says. If one of you decides you don’t like the agreement, you can negotiate a change to the agreement. Any change must also be in writing and signed in front of a witness. If you cannot agree, and you have now

separated, you have to go to court and ask a judge to change it. A court will change a cohabitation agreement only in rare cases.

You should each speak to a different lawyer and exchange financial information before signing a cohabitation agreement.

Q We are living together and don’t have a cohabitation agreement. What will happen to the things we own and our savings if one of us dies?

A If you die without having a will which says exactly what you want to have happen to your property, your property will go to your blood relatives – for instance, your children, your parents or your brothers and sisters. To claim part of your property, your common law partner will have to go to court to prove that he or she helped to pay for it. This takes time and is expensive. For these reasons, people living in a common law relationship should each have a will that says to whom they want their property to go if one of them dies.

Q When we moved in together, we went to lawyers and signed a cohabitation agreement. We’ve decided to get married. What happens to our cohabitation agreement?

A When you get married, your cohabitation agreement becomes your marriage contract. If you both want to change it, you can sign a new agreement.

 

 

Separating and Settling the Issues Between You

You are separated when you are not living together and there is no chance that you will live together again. When you separate, there are many decisions that have to be made.

You will need to arrange which one of you will stay in your home, who will pay family debts, how much support will be paid, how you will divide your property, and who will take care of your children.

You can resolve things in different ways.

1. You can have an informal arrangement, which can be verbal or in writing.

2. You can agree on things and write down your decisions in a separation agreement. A separation agreement must be signed by both of you in front of a witness for it to be legal. The witness must sign the agreement too.

3. You can go to court and ask the court to decide.

It is always better if the two of you can agree on how to settle the issues between you. Court proceedings can be very expensive and take a long time. If you cannot come to an agreement between you, a mediator may be able to help you to talk to each other and reach an agreement. A lawyer can also help you to work things out.

Signing a separation agreement is a very important step. Your decisions now can affect you and your children for the rest of your lives. If one of you decides you don’t like the agreement, you can try to negotiate a new agreement. If you cannot agree you have to go to court and ask a judge to change it. A separation agreement is a contract that you must honour. You should speak to a lawyer to make sure you know all of the legal consequences of your decisions.

You have a right to complete and honest information about your spouse/partner’s financial affairs before you make any decisions. Do not sign anything until you are sure you have all the information you need. Make sure that you understand what is written down and that you agree to it.

The law leaves the decision about having a separation agreement to you. You may have a hard time proving that you and your spouse/partner had promised to settle things a certain way if you do not have a written and signed separation agreement. This could be a problem if your spouse/partner stops respecting your informal agreement.

It is up to you and your spouse/partner to decide the best way to settle the issues between you. A lawyer or a mediator may be able to help you decide what would be best for you.

Q I just found out that my wife did not tell me the truth about her income when we were working on our separation agreement. It turns out that she makes twice as much money as she said she did. Now that I know this, I think I am paying her too much support. What can I do?

A This is one of the few situations in which you can go to court to ask a judge to change your separation agreement. Usually a judge will not change what a couple has agreed to in a separation agreement. However, a judge can change the agreement if he or she finds that a person was not honest and did not provide accurate information about income, property or debts when the agreement was made.

Common law couples

Q We have been living together without being married for 11 years and have one child. We have a house and a car we bought together and lots of furniture. We’re not getting along and we are talking about splitting up. Can we write a separation agreement?

A Yes. Common law couples can write and sign separation agreements in the same way married couples can. You can include whatever you both want in your agreement. It is important for each of you to see different lawyers before signing the agreement.

Seeing a mediator

Mediators are usually social workers, lawyers, psychologists, or other professionals. When these professionals work as family mediators, their job is to listen to what you want and to help you reach an agreement on support payments, the division of property, custody of and access to the children, or any other issues.

Mediators do not take sides or make decisions for you. They cannot give you legal advice.

You should each speak to your own lawyer before you see a mediator. You need to know the law and your rights and obligations first, before mediation starts. Your lawyer will usually not go to mediation with you.

Mediation is not appropriate for everyone, particularly in cases where there has been violence or abuse. If you are afraid of, or intimidated by, your spouse/partner, mediation may not be a good idea.

If you feel confident that you can say what you want for yourself and your children and that you can defend your ideas, you may want to try mediation. It may give you a chance to settle things with the help of a third person.

If you feel unhappy with how mediation is working out, you can leave it at any time. A lawyer can negotiate for you instead. If an agreement cannot be reached, you can go to court and have a judge decide.

You should show any agreement you reach during mediation to a lawyer before you sign it.

Q If mediation doesn’t work, can the mediator tell the court what was said during mediation?

_A It depends on whether you have chosen “open” or “closed” mediation. Before mediation starts you and your partner will decide this issue. In open mediation, the mediator writes a full report on what happened during mediation and can include anything that he or she thinks is important, and that information is available to the court. In closed mediation, the mediator’s report will only say what agreement you reached, or that you did not reach an agreement.

_Q How can I find a mediator? How do I know if a mediator is good?

_A You can obtain the names of mediators through the Ontario Association for Family Mediation. Lawyers also often know the names of local mediators. In some communities, there are mediation services connected to the court and fees are charged according to your income.

          At this time there is no professional licensing association for mediators. It is up to you to ask a mediator about his or her experience and training. If you are not satisfied, or do not feel comfortable, look for another mediator.

_Q Is mediation expensive?

_A The cost of mediation varies. Some community groups offer mediation services for a fee geared to your income. Private mediators are in business for themselves and their fees can vary widely.

 

 

Choosing a lawyer

If you are looking for a lawyer to help you resolve your family law issues, look for someone who has experience doing family law work. You might be able to get the name of a lawyer through a friend or relative. You can call the Lawyer Referral Service to get the name of a lawyer who will give you one half hour of advice for free. If your income is small, or if you are on social assistance, you might qualify for legal aid. Legal aid can help pay for some or all of your legal costs. The number for the legal aid office in your community is in the telephone book.

             Your lawyer can tell you about the law and can talk to you about services in the community that might be of help to you.

The conversations you have with your lawyer are confidential. Your lawyer cannot talk to others about what you have said without your permission.

If you are unhappy with the way your lawyer is handling your case, you have the right to say so. Talk it over. Your lawyer is working for you.

_Q After seven years of marriage, we have decided to split up. We’ve talked about how we will divide our furniture and our household things. We don’t have any children. Do we need to see a lawyer anyway?

_A Yes. You should each see a different lawyer. It may not seem necessary now, but it can save you problems later. Your own lawyer can look out for your interests, tell you about things that you might not have thought of (like pension

rights or taxes) and make sure that you understand what you are agreeing to before it is too late.

_Q My husband has a good job and makes a good salary. I have been at home for the last 10 years looking after our three kids. I have no money for a lawyer. What can I do?

_A You should call your legal aid office. You may qualify for legal aid because you cannot afford to pay a lawyer. If you will get money or property from your husband in the future, you may still be able to get legal aid now on the condition that you will pay legal aid back when you get the money from your husband.

_Q My partner abused me. I know I should leave, but I have nowhere to go and can’t afford to pay for a lawyer. How can I get legal advice?

_A If you have been abused, you have the right to emergency legal services through Legal Aid Ontario. You can talk to a lawyer for two hours for free. A women’s shelter, a legal aid office or a community legal clinic can tell you how to get this free legal service.

 

Going to court

If you and your spouse/partner cannot agree on how to settle the issues between you, you can go to court and ask a judge to decide for you.

Sometimes you can agree on everything except one thing, like custody of the children or what should happen to the family home. You can go to court and ask the court to decide that one thing for you.

Many decisions about the children and about support may have to be made quickly. If you cannot agree on what to do right away, you can go to court to ask for an interim (or temporary) order. This order can cover things like custody of, and access to, the children, who can stay in the family home, and how much support should be paid.

The interim (or temporary) order will stay in effect until the court has time to hear your case in full. The court will then make a final decision.

In some cases, the court will schedule a case conference or a settlement conference. These conferences provide opportunities for you and your spouse/partner and your lawyers, if you are represented, to meet with a judge to discuss the issues in your case. The judge may recommend that you see a mediator, if you have not already done so. Sometimes, the judge will give his or her opinion on what a judge hearing your case at a trial would likely decide. The judge’s opinion will not decide the issues in your case. However, it may help you to come to an agreement with your spouse/partner. Even if you do not agree on everything, you may be able to agree on some issues.

_Q We cannot agree on who should have custody of our children. When we go to court, will the children have to go too?

_A The judge will want information about the needs of the children and their relationship with each of you. Judges generally want to avoid having children give evidence in these cases. More likely, the judge will ask for an assessment.

An assessment is a detailed review of your family situation by a person such as a social worker, psychologist or psychiatrist. The person doing the assessment will usually meet with each member of the family and sometimes with other people. He or she will then write a report for the court which contains recommendations on the issues of custody or access. In most cases, you and your spouse/partner will be responsible for costs of the assessment.

In some cases the judge may ask the Office of the Children’s Lawyer to to the court with recommendations. The Office of the Children’s Lawyer may assign a social worker to conduct the investigation. The social worker will meet with the children, the parents and other people.

If the court feels that the children would benefit from having their own lawyer during the court process, the court can ask the Office of the Children’s Lawyer to provide a lawyer to represent your children’s interests in court.

_Q Do I need a lawyer to go to court?

_A No. You can go to court without a lawyer. You will then be responsible for completing and filing all of the appropriate court documents. You can get some information about completing these forms in courts where there are Family Law Information Centres. You can also ask court staff if there are any guides to procedure that can help you. You will also speak for yourself in front of the judge.

Some courts have lawyers who are called advice lawyers and duty counsel. Legal aid provides these lawyers at no cost to people who have low incomes. Their job is to answer people’s questions and to help the court. They may be able to give you some information about the law. In some cases, duty counsel can also speak to the court on your behalf and help you negotiate a settlement.

Getting a divorce

Separation agreements and court orders resolve family matters when you separate but they do not legally end your marriage. The only way to do this is to get a divorce.

You can get a divorce by proving that your marriage is over. You can prove this by showing that you have been separated for a year, or that your husband or wife has had a sexual relationship with another person, or that your husband or wife has been physically or mentally cruel to you.

If you cannot agree on the terms of your divorce, you can go to court and let the court decide. If you can agree, you can file your agreement in court. In that case, you probably will not have to see a judge.

When your divorce is final, you can marry again.

_Q We’ve been living apart for five years and are happy with the way our separation agreement is working out. I would like to get a divorce now. Can I do the paperwork myself?

_A Yes. However, it is a good idea to speak to a lawyer first to make sure that you understand all the consequences of getting a divorce. Your lawyer can advise you on support, tax, pension and other issues.