Does the law presume that common law spouses are entitled to the same equal division of their property after separation as married spouses?
By: Steven Benmor, B.Sc., LL.B., Family Lawyer
Jurisdiction: Ontario (Canada)
“Does the law presume that common law spouses are entitled to the same equal division of their property after separation as married spouses?”
The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property – a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.
Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.
When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses - while there is no legal authority or presumption to do so.
The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15 year relationship.
The appellate court reduced Ms. Leclair’s award to $70,000.
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About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at www.benmor.com. The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available. |
