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Posts from the ‘Common Law Spouses’ Category

Should Common-Law Couples Be Equivalent to Married Couples? One Step Closer… One Step Back

balance

Should Common-Law Couples Be Equivalent to Married Couples? One Step Closer… One Step Back

In Ontario – and with some notable exceptions – common-law spouses have the same rights as those couples who are in a traditional marriage, and for legal purposes have many (though not all) of the same obligations towards each other. However, in a recent Ontario criminal case called R. v. Hall the court examined whether there should be different treatment applied to common-law spouses in connection with testifying against their partners in certain criminal matters.

As background, it must be noted that under the Criminal Evidence Act, the ability of married spouses to testify against each other in certain criminal matters is specifically curtailed. In law, the question is one of “competency” (meaning whether a person can lawfully be called to give evidence) and “compellability” (meaning whether a person may lawfully be forced to attend and testify, usually by way of subpoena). The Criminal Evidence Act therefore sets out certain rules relating to both competency and compellability that pertain to various prescribed scenarios. In short, in some scenarios married spouses are merely competent to testify; in others they are both competent AND compellable. And in other defined (and narrow) situations, spouses are entirely exempted from having to testify.

However, no such exemption applies to common-law spouses (defined by federal legislation as one who is “cohabiting with the individual in a conjugal relationship having so cohabited for a period of at least one year or having a child together, or entering into a cohabitation agreement”). The question in R. v. Hall, was whether they should and whether such an exemption should be “read in” to the Act.

The facts involved a man who had been charged with murder. Certain conversations between him and his common-law partner had been intercepted by police, and she later described for law enforcement authorities some of the many illicit activities in which the accused man had allegedly been involved. Since under the Act the man’s common-law partner was not subject to the exemption that was afforded to married spouses, the question arose as to whether the scenario gave rise to a fundamental unfairness.

The court considered various constitutional principles, and found that the protections for spouses found in the Canada Evidence Act should indeed be extended to common-law spouses, as this would harmonize the law in this area with the other legislation that essentially abolished the distinction between the two types of union.

So why is this case interesting from a Family Law perspective? From a theoretical / policy-based viewpoint, it perhaps stands in stark contrast to a decision of the Supreme Court of Canada a few weeks ago which ruled that under Quebec Family Law, it is not unconstitutional for common-law spouses to be given different rights from married couples in connection with certain specific rights arising from support upon separation. I will comment on that decision – called Quebec (Attorney General) v. A. – in a future Blog post.

For the full text of the decisions, see:

R. v. Hall, 2013 ONSC 834  http://canlii.ca/t/fw1gs

Quebec (Attorney General) v. A., 2013 SCC 5  http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12825/index.do

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.russellalexander.com/team/russell-alexander/

Was 1000-Guest Religious Wedding a Valid “Marriage” in Ontario?

wedding

Was 1000-Guest Religious Wedding a Valid “Marriage” in Ontario?

The issue in this interesting case was whether a form of cultural/religious marriage in which the parties had participated in Ontario was valid, to the extent the parties were legally married and entitled to embark on the equalization process under provincial family law.

In Chhokar v. Bains, the couple went through a Sikh religious marriage, which was performed in 2008 in a Sikh temple located in Ontario. All the traditional steps were taken; over 500 people attended the ceremony and about 1,000 attended the reception. However, no marriage license was ever obtained, and the marriage was never registered under the Ontario Marriage Act as required by provincial law.

After the ceremony, the couple lived separately for a while; they then lived together common law but never obtained a marriage license. The man claimed that this was because the woman wanted to remain “single”, apparently wanted to be free to marry and sponsor her cousin in India as part of a fraudulent immigration scheme to Canada. The woman denied that, claiming to the contrary that it was actually the man who had someone else lined up in India to marry. Each party claimed that it was the other who had resisted or been unwilling to get a marriage license, once they had become aware of the requirement under Ontario law.

The couple separated in 2011.

Based on the assertion that there had been a legal and valid marriage in Ontario, and that she accordingly qualified as a “spouse” under the Family Law Act, the woman applied to the court for an order equalizing the net family property.

The court dismissed the woman’s application. Neither of the parties called family or friends for evidence to support their version of events, so the court had to determine credibility. While concluding that the evidence of both of them was “less than satisfactory”, overall the court believed the man. His version of events evidence was corroborated by some surreptitiously-recorded conversations which – while expressly frowned upon by the court – were nonetheless persuasive.

In short: the court found the religious marriage they participated in did not comply with the legal requirements of a marriage under Ontario law, and was not undertaken in “good faith”, i.e. with the woman having the intention to comply with that law. Given that she was the one bringing the equalization application, the woman’s intention was relevant and she had the burden of proving that she intended to enter into a legally-valid marriage with the man. However, the documentary evidence (such as her tax return, where she listed herself as “single”, and a life insurance application, on which she listed the man as “friend”) supported the idea that the woman herself did not think they were legally married.

As a result, and although the elaborate and expensive Sikh religious marriage that took place did amount to evidence that the couple intended to be married, it fell short of showing that they intended to comply with the Ontario legislation.

As such, the woman was disentitled from claiming equalization of the net family property. However, she was nonetheless entitled to $150 per month in short-term spousal support, taking into account the brevity of the marriage, the husband’s $50,000 income, and her own ability to earn about $20,000 per year as an aesthetician.

For the full text of the decision, see:

Chhokar v Bains, 2012 ONSC 6602 (CanLII)  http://canlii.ca/t/fv1m0

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and

• the claim for spousal support is made within one year of couples’ separation.
The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

We examine:

1) What is spousal support? 

2) What is the legal basis for obtaining spousal support? 

3) What factors dictate the duration and amount of spousal support? 

4) How does the spouse’s behaviour affect spousal support entitlement? and  

5) What happens if there is a change in circumstances?

Granting a Canadian Divorce to a Foreign Same-Sex Couple – Are They Even “Married”?

same

Granting a Canadian Divorce to a Foreign Same-Sex Couple – Are They Even “Married”?

An interesting Ontario case decided last week untangles the question of whether – for the purposes of divorce – a same-sex union in another country can constitute a “marriage” in Canada.

The couple, two men named Wayne and Gerardo, met in 2009 and went through what is known as a “civil partnership” ceremony in the UK, in keeping with legislation devoted specifically to recognizing same-sex relationships in that country. (The term “marriage” in UK law is still specifically reserved for opposite-sex relationships).

They complied with all the UK procedural requirements, and exchanged rings.

When they decided to move to Canada (where Wayne was originally from), Gerardo obtained a UK national identity card which identified him as “spouse/partner”. Upon inquiring at Toronto City hall about the prospect of having a civil marriage ceremony here, they were told that as far as the Registrar was concerned it was unnecessary, since they were already in a UK civil partnership.

They separated in early 2011, and Wayne filed in Ontario for a divorce. He claimed equalization of net family property, and spousal support pursuant to the province’s Family Law Act.

However, Gerardo countered by claiming the parties were not actually married – i.e. that “civil partnerships” do not constitute “marriages” in the UK, much less in Canada. As such, he asserted that an Ontario court has no authority to grant a divorce or to grant equalization under the Ontario Family Law Act unless the parties are married spouses first.

Accordingly, and as a prerequisite to a divorce, Wayne applied to the court for a declaration that the union between him and Gerardo was a “marriage” for the purposes of Canadian family law.

The court observed that in Canada, “marriage” is defined by the Civil Marriage Act as “the lawful union of two persons to the exclusion of all others.” Wayne and Gerardo’s civil partnership met that criterion. Moreover, Canadian law was entitled to treat a foreign civil partnership as a “marriage” if it saw fit, and there was no need to force Wayne and Gerardo to have their civil partnership dissolved using the procedures established in the UK.

To resolve the question the court had to take into account the legislative and policy framework for marriage and civil unions in both Canada and elsewhere. In particular, the court recognized that the law is possessed with the flexibility necessary to meet the changing realities of Canadian society.

With that context in mind, the court declared that Wayne and Gerardo’s civil partnership could constitute of “marriage” under the Canada Civil Marriage Act. To hold otherwise, it said, would be to perpetuate discrimination and to “run contrary to the express values of Canadian society, expressed in both the case law, and the statute itself.”

For the full text of the decision, see:

Hincks v. Gallardo, 2013 CanLII 248 (ONSC)

http://canlii.ca/t/fvkpd

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Thinking of Sponsoring a Spouse to Come to Canada? Important Changes You Should Know

sponsor

Thinking of Sponsoring a Spouse to Come to Canada? Important Changes You Should Know

The federal Minister of Immigration has recently introduced a series of important changes to the spousal sponsorship requirements and process. These changed are intended to strengthen the integrity of the Canadian immigration system, by clarifying the regulations relating to sponsorship and by deterring fraudulent “relationships of convenience” (by which two people marry in order for one of them to obtain permanent residence in Canada).

Here is a brief summary of what you need to know:

Background on Sponsorship

Any individual who wishes to sponsor a spouse, conjugal partner or common law partner to come to Canada as a permanent resident must apply pursuant to the Immigration and Refugee Protection Regulations (IRPR), which allows such sponsorship of individuals who are part of either the “family” class or “spouse or common law partner in Canada” class. Prior to the recent changes, the regulations merely required that the sponsoring party be ether a Permanent Resident or a Canadian Citizen.

Changes to Spousal Sponsorship Rules

The first change, effective March 2, 2012, affects only those spouses who have themselves been sponsored to be in Canada in the first place (as a spouse, common law partner, or conjugal partner). The amendments impose a new five-year sponsorship bar for such individuals: – in other words, a person who has been previously sponsored is prohibited from sponsoring a new spouse or partner for the first five years or his or her permanent residency. This measure is intended to prevent such individuals from divorcing their original sponsors and then getting married (and sponsoring) someone else to come to Canada.

Conditional Residency

The second change came into effect on October 25, 2012. It involves the introduction of a conditional residency requirement for certain spouses. In particular, those spouses, common law partners, and common law partners who have been in a relationship for two years or less must satisfy a two-year conditional permanent residency requirement, i.e. they must live with the sponsoring spouse in a conjugal relationship for a continuous period of at least two years after the day on which they became permanent residents.

Those who breach the residency condition may be declared inadmissible to Canada, and may be subject to removal. The condition is automatically removed after the two years has lapsed (unless there is an investigation by Citizenship and Immigration Canada into whether the conditions have been satisfied).

There are exemptions to these requirements in two cases: 1) where the couple has lived together for less than two years but have a child together; and 2) where the sponsored spouse can demonstrate that he or she has suffered neglect or abuse (which can be physical assault, forcible confinement, sexual assault, psychological threats or intimidation, and fraud or extortion).

Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario, Canada

 

 

Top 5 questions about spousal support in Ontario, Canada

In this video Russell reviews some of the more common questions about spousal support in Ontario, including:

1) What is spousal support?

Spousal support – which is sometimes called “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

2) What is the legal basis for obtaining spousal support?

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

A court may order spousal support, and will set an amount and duration based on various factors that exist between the parties. The jurisdiction for a court to award spousal support comes from either the federal Divorce Act (as part of a divorce order), or from the Ontario Family Law Act.

3) What factors dictate the duration and amount of spousal support?

The determination of how much support a spouse should receive, and for how long, is a complex equation. In making a spousal support order courts consider several factors, including:

• the length of the entire relationship (including time living together before marriage);

• the financial circumstances of each spouse, both during the relationship and
after separation;

• the functions performed by each spouse during the relationship;

• the financial repercussions or detrimental financial effect on one or both spouses of caring for each other or for any children of the relationship; and

• each spouse’s ability to support him or herself.

In some cases one spouse may have suffered a financial loss or disadvantage as result of joint career and lifestyle decisions made during the marriage or relationship (for example the decision to move the family so that a spouse can take a new job, or that the mother will give up her career to stay home and raise the children). A disadvantaged spouse will be entitled to support to compensate him or her for that setback.

There may also be a limit on the duration of the support that one spouse receives from the other, as means of encouraging the recipient spouse to achieve post-separation financial independence as quickly as possible. Alternatively, the order may contain a built-in review mechanism.

Note that there are certain tax consequences relating to spousal support – both from the payor’s and the recipient’s perspective. In short – and provided it is paid pursuant to either a written separation agreement or a court order – it is considered “taxable income” in the hands of the spouse who receives it, and is deductible from the taxable income of the spouse who pays it. These tax ramifications are taken into account when determining the amount of support.

4) How does the spouse’s behaviour affect spousal support entitlement?

Generally speaking, the entitlement to spousal support is not dependent on the spouse’s pre- or post-separation behaviour, morality, or ethical conduct. In other words, a spouse who is otherwise entitled to spousal support after the dissolution of a marriage will not become disentitled because he or she was violent, or because it is later discovered that he or she had an extra-marital affair during the marriage.
Having said that, a court’s determination of the amount and duration of spousal support will hinge upon each party providing forthright, comprehensive financial disclosure to each other. If in making the determination the court feels that one spouse has withheld financial information (e.g. has failed to disclose a source of significant income), the court may impute income to the spouse and award the other spouse his or her support accordingly.

5) What happens if there is a change in circumstances?

As indicated above, the notion of one spouse receiving spousal support from the other is rooted in several concepts and principles, including:

1) the financial disadvantage or dependence that relationship gave rise to must be redressed post-separation; and

2) the ability of the paying spouse to fund the spousal support award must be taken into account.

The amount or duration of spousal support may have to be adjusted if there is significant change in the financial circumstances of either party. This change must be significant, and must not have been foreseen when the separation agreement or the court-ordered spousal support award was made.

We hope you have found this video helpful. If you require further information about spousal support please give us a call or visit our website at www.russellalexander.com

Top Five Questions About the Children of Common-Law Relationships

Top Five Questions About the Children of Common-Law Relationships

Common-law relationships are very common in today’s society.  Nonetheless, the legal issues surrounding support obligations or adoption by a non-parent are often not well understood.   Here are the top five points to note:

1) Is a common-law spouse obliged to pay child support?

As with parents who are formally married, the common-law parents of a child are both equally responsible for support.   This obligation lasts until the child reaches the age of majority (age 18 in Ontario), but can extend beyond that point if the child remains dependent because of disability, illness, or because he or she is pursuing post-secondary education.

2) Who pays support for a step-child?

A person who enters into a common-law relationship with someone who already has children may have to support a step-child.  It depends on whether in light of all the circumstances he or she qualifies as a “parent” under the Ontario Family Law Act, which definition includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”

3) What if you want to adopt your spouse’s child?

A person who wants to adopt the child of a common-law spouse can only do so if the child’s other biological parent is prepared to give up his or her rights.  Once such an adoption takes place, the adoptive parent assumes all of the responsibilities of the biological parent in connection with the child, including the obligation to pay child support.

4) Who gets custody of a child if common-law partners break up?

Ideally, if common-law spouses decide to separate, they can amicably decide which of them should have primary custody of the child, and how access arrangements are going to be structured.   Any minor disputes about the scope or range of decision-making, or the nature, extent and scheduling of access, can be worked out with the assistance of a family law mediator.

However, if the common-law partners/parents cannot agree, then a judge may have to make a binding decision that will settle any outstanding matters.   As with children of parents who are formally married to each other, the governing principle to be applied to these decisions is always the best interests of the child.

5) Can a common-law couple adopt a child?

In Ontario, common-law spouses have the same rights as married spouses to adopt a child; they are also subject to the exact same requirements.  These include the requirement that they have both reached the age of 18, that they provide certain documents (e.g. medical reports, police clearance reports, letters of reference, financial statements, and similar) and that they participate in both a home study process and an education program.   The home study may be completed either privately, or by a Children’s Aid social worker.

For more information about the obligations that may arise in connection with children of parents in a common law relationship, contact us as www.RussellAlexander.com.

Can Some Family Law Matters Be Taken to Small Claims Court?

Can Some Family Law Matters Be Taken to Small Claims Court?  

A Ontario Superior Court of Justice decision heard a few weeks ago cleared up the issue of whether separating common law spouses can have certain of their unresolved issues heard in Small Claims Court, rather than having to take the matter to Family Law Court (as legally married couples must do).

In this case, the couple lived together common law for about three years.  When they separated, the woman brought a Small Claims Court action against the man, to recover money she allegedly owed him under a verbal agreement.  The money related to some debts for living expenses.

At an initial hearing, the man claimed that the woman’s Small Claims action should be dismissed, because in actuality the matter pertained to Family Law, and so the Small Claims Court had no jurisdiction to deal with it.   A first judge hearing the matter had not agreed with him, and allowed the woman to proceed with the claim and take steps to set a date for trial.

The man appealed the judge’s ruling.  Among his arguments were the following:

1) the woman’s claim was based either on an alleged oral cohabitation agreement, or was based on constructive trust principles (which are court-created concepts, designed to address common law situations where the parties’ financial and legal affairs are not covered by contract or statute).   Both of these are Family Law matters.

2) As such, the matter should properly be heard in the Family Law courts, not in Small Claims; and

3) Furthermore, the constructive trust claim is actually a means of obtaining relief in equity, which was beyond the Small Claims Court’s jurisdiction in terms of the type of relief such courts were allowed to grant.

(In contrast, the woman argued that – while it was true that the parties were living together – it was not true “cohabitation” in the Family Law sense, nor was it a “common law relationship” because she was still legally married to another man the entire time.  She claimed she could not have two “spouses”, so the verbal agreement relating to the debt for living expenses could not be a “cohabitation agreement” under the Family Law Act.  Instead, she likened it to a “loan to a friend”.)

The court hearing the appeal disagreed with the man’s position.   True, this was a common-law relationship, and – absent a contract – the only claim for property or debt between common law partners is grounded in the concept of constructive trust, which is a Family Law matter.   However, if the woman wanted to assert both arguments (i.e. that there was a contract in place and/or that there was a constructive trust), then there was no point in forcing her to take the contract aspect of her claim to a different court.   Plus, there was also recent precedent for the idea that the Small Claims Court does indeed have jurisdiction to grant equitable relief – after all, it is a “court for the people”, with the aim of bringing justice “effectively and cost-effectively to people”.

But even acknowledging that Small Claims Courts do generally lack jurisdiction in Family Law matters, the current case involved on a stand-alone issue:  the validity of an alleged verbal loan between the parties, and one that did not have the required formality nor meet the established test for what constitutes a “domestic contract” under the Family Law Act.   This was not a case where one party was seeking support, division of family property, or relief related to the sale of a matrimonial home.  Instead, this was a simple contract case between two people who used to live together.  

Finally, the court clarified that the Small Claims Court does indeed have jurisdiction to award legal or equitable relief, provided the judgment comes below the $25,000 monetary limit of that court.

For the full text of the decision, see:

Matteau v. Johnson, 2012 ONSC 1179 http://canlii.ca/t/fq62d