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Common Law Spousal Support

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Anonymous Asked:

I am just wondering how long after a common law separation do i have to arrange spousal support and/or child care? I was with my spouse for 20 years and we are separating. We can figure out the house division pretty easy but the other items above are holding up the process of writing out a separation agreement. I live in Ontario is it possible to do up a agreement that states the child support and spousal support willl be addressed in the near future? Thanks.

Expert Comment:

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Ted M. Charuk, LL.B, LL.M
7 years ago

This is in response to your questions regarding the preparation of a Separation Agreement. It is not clear whether you are the party requesting support or the party that will be required to pay support. I will therefore respond to your questions on the basis that you are seeking financial assistance from your partner.

Spousal support may be claimed, in your situation, at any time. However, your position with respect to the claim for support will likely weaken over time and you should therefore not delay in negotiating an agreement. You should also know that if there is any resistance to paying you spousal support and you need to seek the assistance of the Courts, you will likely not be awarded support for the period prior to actually issuing the Court Application. In other words, you would lose out on any spousal support that might otherwise have been payable.

With respect to child support, if you are making a claim for such support you should do so as soon as possible. The Courts are more lenient with respect to making retroactive orders, however, it is in your interests to deal with both child and spousal support at the same time as you deal with the property issues. You can prepare a Temporary Separation Agreement, however, it would make more sense to simply prepare one final agreement dealing with all issues. It is not clear as to why you would not want to finalize all issues at the same time.

You indicated that it is "easy" to deal with the property issues but mention only the ‘house division’ which I assume, based on your comments, is jointly owned. There may well be other property to which you are entitled to make a claim even though you were not legally married to your spouse. This is based on the fact you were in a common-law relationship for 20 years and had children as a result of that relationship. You may have an entitlement to, for example, a share of the value of your partners pension, RRSPs, investment properties, or other assets that accrued during your relationship with him. The Courts will examine your situation and, if one party is being "unjustly enriched", may make an order recognizing your contribution to the acquisition of such assets.

In your situation I strongly urge you to seek professional legal advice from a qualified lawyer before finalizing any agreement with your partner.

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