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Living Separate – Mother of 3

Posted in Divorce, Location, Ontario, Scarborough by Questions on June 11, 2014

Hello,
I have been married for 24 years…I have not been with my husband for over a year now..and we have been sleeping in separate rooms. I have been sleeping in the living room and he has taken over the master bedroom. we have 3 grown up children…2 of which are still going to College/University. my son is graduating this year. I have been the sole provider for the last 10 years and paid 80% of the household expenses. I have worked for the last 27 years and he has not worked for the last 10 years. He was very controlling the first 20 years we were married. I would like to know if this is a valid reason to file for divorce and would I be able to ask him for support for the children as they are all still living with me and I am paying for their school. Also, I would like to know if he is entitled to half of the house and my rrsp as he has not fully contributed to either. Also, I have used all of my inheritance towards the house, which I know I shouldnt have, but need to pay the mortgage and bills.

2 Expert Comments

  1. On June 11, 2014 at 2:47 pm
    A Family Lawyer said:

    An application for divorce may be on the grounds of living separate and apart for one year. I cannot satisfy myself through this forum whether or not you are separated and as such you should contact a family law lawyer to discuss. It does seem as though there are grounds to support the divorce application. If you wish child support you must apply while the children are dependents. There is no jurisdiction for a court to grant child support for an independent adult child, DBS Supreme Court of Canada. Therefore, you should obtain his income information and a written agreement or court order in respect of child support as soon as possible. If you serve him with court application he may serve you with responding materials asking for equalization of the value of the assets accumulated during the marriage. Given the length of the marriage, you have tolerated the situation for quite some time.

  2. On June 17, 2014 at 9:58 am
    Andrew J. Kania, LL.B., LL.M. said:

    Answer: You have raised multiple questions. I answer them as follows:

    1. Based on the above facts you are already legally separated (based on the one year separation requirement) and I can obtain the divorce for you now. (You can be legally separated even though no one has “moved out”).
    2. I need to know why he has not worked for the last 10 years. This will affect my answer in terms of his potential child support obligations. It will also affect YOUR exposure to potentially pay him spousal support.
    3. Property: you are both entitled to an “equalization of net family property” pursuant to the Family Law Act. This means that all of your assets/debts get considered and shared – especially after a 24 year marriage – regardless of who contributed/incurred them. That being said, section 5(6) of the Family Law Act allows for an unequal division (“less sharing”) based on fairness considerations. However, I would need to speak with you to ask questions, before commenting on whether this section might assist you.
    4. Inheritance: money received during the course of the marriage, from an inheritance, is an “exclusion.” If the rules can be met, then you need not share the inheritance. However, the inheritance must be traced and exist on the date of separation. As well, it cannot go into a matrimonial home. I can tell you exactly how your inheritance will be treated, after I can ask you some questions.

    As you have a complicated case, I invite you to telephone me for a free consultation, so that I can provide proper guidance to you.

    (The information provided above is general, not legal advice, as circumstances vary from case to case. Thus, if you wish legal advice that you can rely upon for your specific case, please contact Andrew Kania for a free consultation).

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