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Ask Andrew Feldstein

I have a common law spouse and we shared a home together. The house belonged to her prior to our relationship and title is solely in her name, but I have been living in the home with her for almost four years now. We have separated. Do I have any rights to the house?

As a common law spouse you do not have the same rights to the matrimonial home as married spouses. Married spouses automatically receive possessory rights to the matrimonial home according to the Ontario Family Law Act. However, this section does not apply to common law spouses, therefore, upon dissolution of the relationship you have no right to stay in the home. Additionally, the laws regarding division of property do not apply to common law spouses either. As a common law spouse there may be a way for you to receive some interest in the home through trust law. This, however, requires that you meet certain legal tests, such as, for example, the test for unjust enrichment. More information about your scenario is required in order to give a proper answer in your specific situation.

I just found out that my spouse was cheating on me during our marriage. How will this affect child custody?

The short answer is that it will not affect child custody. Child custody is based on the best interests of the child not on the conduct of the parents. Parental conduct only effects custody where there is extreme behaviour that impairs the parent’s ability to care for the child, for example, a severe drug program. Upon the dissolution of the relationship courts will not deny nor grant either parent access or custody of the children based on any marital indiscretions.

I own a business that was started prior my marriage. My spouse has in no way contributed to the business. I am now separating. Does my spouse have any right to my business?

Yes and No. Both you and your spouse create a Financial Statement in order to resolve property issues. In this statement you will calculate your net worth at the time of separation and then deduct the value of all property owned at the time of marriage. Therefore, the increase of the value of your interest in the business will be included in your net family property and become part of the equalization calculation. However, your spouse does not generally have any right to control the actual business or any part thereof. Your spouse may have access to different remedies, such as freezing or controlling certain business assets, but this only occurs in situations that require such action and are not the norm.

My spouse and I separated about two years ago. She has sole custody of the children and I have liberal access, which I exercise regularly. I see my kids usually at least 3 days a week. Now my ex is talking about moving about 3 hours from here, because her boyfriend got a new job. What are my rights with respect to the move?

It is possible for you to bring your case to court to attempt to block your former spouse from moving with the children, however, it is very hard to predict what a court may say when it comes to mobility cases. As with all child-related issues the court makes its decision based on the best interest of the children and not the parent’s interest. Therefore, the court will look at the relationships involved and see whether the move is in the children’s best interest. Options that remain open to the court include: changing the custodial parent so that the children do not move or reducing the quantum of child support in order to offset the additional cost of access. Some of the factors that courts may consider are:

1. How far away the spouse is moving;
2. How much of a disruption the move will be on the children’s lives;
3. Why the parent is moving;
4. The willingness of the moving parent to preserve and facilitate access.

All the foregoing being said it is likely best that you and your former spouse try and negotiate a resolution to this issue before taking the issue to court.

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Toronto Family Law Newsletter

Buxar Domestic Contract Case

In Buxar v. Lukich, Buxar filed a claim in Ontario Family Court that she should be the owner of her engagement ring after a failed relationship. Lukich counter-claimed that he should be returned the engagement ring he purchased for his former girlfriend, that Buxar should return to him his portion of the down payment the couple made on what was to be their matrimonial home in Michigan.
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Letters to the Editor

We welcome any feedback or topics for discussion for the Letters to the Editor section.
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