What is a common law relationship?

If you live or “cohabit” with someone (regardless of whether they are the same gender as you or the opposite gender) and you are not married, then people often say that you are in a common law relationship. There is no precise definition of what constitutes a common law spouse. In Ontario you need to live together for three years or live together for less but be the parents a child. Under most federal laws, you are considered a common law couple if you have been living together for one year or longer.

Perhaps the most important distinction between married and common law spouses is the right to property when the relationship breaks down and the parties separate. Couples who live together do not have the same rights as married couples to a share in the value of property, including the home they live in, unless the property is in both of their names.

Am I still considered separated even though my spouse and I live still under the same roof?

If your relationship has ended but both of you are still living in the home or apartment, you may still be considered living separate and apart provided that you are no longer behaving as though you were married.

Generally, the courts require clear evidence that spouses are no longer sharing social or domestic chores if they continue to live in the same home. If you are unclear about whether you are living separate and apart, you should give me a call on (519)  804 – 9521.

Do I need to go to court to process my separation agreement?

What you and your former partner need to do is both receive independent legal advice confirming that you have agreed to the terms of your separation agreement.  If you have a lawyer’s certificate confirming that, then you do not need to go to court. Keep in mind that a separation agreement must be signed by both of you in front of a witness for it to be legal, and the witness must sign the agreement too.

You can file a copy of the separation agreement with the court, but you don’t have to. Its only if you want the Family Responsibility Office (called the Maintenance Enforcement Program in other provinces) to collect support payments on your behalf that you must file your separation agreement with the Superior Court of Justice (Family Court).

What steps are involved in the family court process?

Unless you are filing for divorce only, the Family Law Rules require both sides to attend at least one conference with a judge to discuss the issues in dispute and how they can be resolved.  This is referred to as a “case conference”. What happens here is that the judge and parties discuss ways to resolve the issues in dispute, as well as steps that should be taken for the case to proceed.  Following the case conference, one or both parties may bring a motion for a temporary court order.  For instance, to deal with custody of children. That temporary order would be in effect until it is changed or a final order is made.

A case conference is sometimes followed by a settlement conference, where the judge and parties attempt to settle the case. At this point, the judge may be able to provide an opinion of how the issues in dispute could be resolved.  Sometimes the judge will bring his or her experience to bear on the matter and will tell the parties (individually) what he thinks each party would win if the matter goes to trial.  If the parties still cannot settle the case, a trial may be necessary. A trial management conference would then be held to determine how the trial would proceed.

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