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Family Issues
Custody, Separation, Divorce

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Couples contemplating living together or marrying often want to create some certainty to address the possibility of future separation. Cohabitation Agreements and Pre-Nuptial Agreements address this need. Couples who are married, but are now separating, also often want written agreements to clarify the terms of their separation.

We will assist you with all of these matters, including, if necessary, courtroom litigation with respect to custody, support, or other issues arising upon separation or divorce.

We live common law. Is that the same as being married?

Many of us today have family members who are in common law relationships. We often think these days, when so many social customs and so many laws are changing, that common law couples have the same rights and obligations as couples with marriage certificates.

Although there are many things common law couples can do to protect each other, they are not yet protected by the laws applying to intestacies (when a person dies without a will) or the laws applying to property division upon separation. There are some test cases challenging the alleged unfairness of the intestacy laws of inheritance moving through the Canadian court system; however, our laws have not yet changed to protect common law partners.

A spouse with a marriage certificate has a legislated right to an equalization of property upon separation. A “certificate” spouse has a legislated right to object to the sale of the family home even if he or she is not a registered owner of that home, and, so important, a legislated right to inherit upon the death of the husband or wife without a will. Common law spouses do not. A common law spouse must sue in court for financial support, if he or she qualifies to do so, or for repayment of contributions made to the former spouse’s assets. These claims can be difficult to prove, and are definitely expensive to pursue.

For a common law spouse, there is no right to inherit unless you are named in the partner’s will, or are the recorded surviving joint owner of a specific asset.

Common law spouses can make provision for each other in their wills. They can sign powers of attorney that name the partner as attorney for property, and as attorney for personal care. Common law spouses can sign cohabitation agreements which set out in writing what they will or won’t do for each other if they separate, or in their wills, to occur upon death.

Common law spouses can own assets jointly, by registering vehicles, property, investment certificates and bank accounts in both names as joint owners (often called joint tenants) with a right of survivorship. Common law partners can name each other as beneficiaries on life insurance policies, and on registered retirement savings plans and on registered retirement investment funds.

There is a lot that common law spouses can do to mirror the protection our laws give to couples with marriage certificates. It won’t happen by accident. The protection will only exist if you plan for it, organize it, and sign all of the necessary paperwork.

So if you, or someone you care about, is in a common law relationship and has financial interests at stake, consider creating the necessary written protection. Hopefully it will never matter, but if it does and the protection’s not there, the result is misery, unfairness and financial hardship
Cohabitation Agreements

Cohabitation Agreements are very helpful in setting out who will pay for what costs and expenses and who will own what assets when two people are living together as a couple.

Marriage Contracts

When a couple intends to marry, they often arrange a contract which covers similar issues to the cohabitation agreement. These agreements will usually specify whether either person will have financial obligations to the other person if they separate.

Separation Agreements

These are written to confirm which person will take ownership of specific assets, or responsibility for specific debts when the couple has separated. It can detail financial support obligations, life insurance obligations, benefit plan obligations, child support amounts, and child custody issues – e.g. child access times and locations.

Divorces

Divorces can be applied for jointly, or by one spouse only, as either an uncontested or a contested matter.

Jointly owned property

If you don’t want your spouse to be the sole owner of jointly held property if you die, then you must sever the joint tenancies. This can be done for real property (land and buildings) by registering a deed signed by you alone, transferring your half-interest in the property to yourself.

Look at your will

Your spouse is probably set out as your executor, and also as your beneficiary if you die first. If you want to change this, you must do so properly. Marking up your copy, or even the original copy, of the will is not a safe way to change it. See your lawyer. In your new will, name a friend, a relative, and adult child to be your executor. Decide how your assets are to be divided.

Life insurance policies

Have you agreed to leave your spouse on them?
If not, if you don’t want your spouse to inherit the money, change the beneficiary designations with each company right away.

Check your RRSPs

Have you agreed to leave your spouse on them?
Again, if not, change the designation of the beneficiary.
Check your company pension.