My ex wife had a child with somebody else can I now stop spousal support because they are common law in Ontario Canada

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Customer: My ex wife had a child with somebody else can I now stop spousal support because they are common law in Ontario Canada.
Answered by Joey in 13 mins 1 year ago
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Customer
I have a separation agreement saying that I can stop spousal support if she remarries or cohabitates with somebody else. She is not married but they did have a child which I’m pretty sure makes them common law.
She is asking for this separation agreement to be overturned because we both didn’t disclose the correct amount of our pensions because we did not have independent legal advise. So I’m wondering if the separation agreement is over turned will I have to pay support after she had her baby?
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Joey, Expert

Hi and thank you for using JustAnswer.  My name is ***** ***** I will be assisting you with your question.

Just a general disclaimer that this conversation is for informational purposes only. I am licensed Canadian lawyer; however, you would need to retain a lawyer to take any legal action and/or preserve any of your legal rights. I may be away from my desk from time to time, but rest assured I will always return back as soon as possible.

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Joey, Expert

Spousal support is NOT automatic. The party seeking it would first need to establish need and/or economic hardship. In many situations, the mother typically would stay home with a child for a number of years which would stunt her career growth and earning potential. Spousal support would help compensate her who lost out on those career opportunities. Economic hardship can result after a separation and spousal support can help her (or him) get back on their financial feet again.

The general factors looked at are: 1. Length of relationship 2. Financial situation of both parties 3. Role each person played in the relationship and 4. Whether the person asking for spousal support needs it to become financial independent. This is a very fact specific exercise. There are some guidelines similar to the Table amount for child support, but they are just guidelines.

Here is a link to an online calculator using the guidelines. https://www.davidsonfraese.ca/spousal-support-calculator/

Customer
Thanks for your response. We agreed on spousal support because I make twice as much as she does. Not because she was disadvantaged in her career while we were married for 10 years but because she has no post secondary education. In fact she advanced in her career while we were married. I am paying spousal support so she can financially get on her feet.Now that she has a child with another man and they are engaged, would it not be his responsibility to ensure she is financially on her feet?
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Joey, Expert

How long did you agree to pay spousal support for?

Customer
5 years or until she remarried or common law with somebody else.
Customer
But our separation agreement may be turned over so that agreement wouldn’t stand.
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Joey, Expert

If it's overturned, then the court will take a fresh look at it.

Customer
What do they usually do when somebody becomes common law with somebody else? They are actually now separated and he is paying her spousal support
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Joey, Expert

They would take a holistic look at her income situation. If there is a big swing in either direction, then spousal support could be modified.

Customer
I’m sure I would have to pay her spousal support because I make 100k and she makes 40k. But would the courts see her having a baby with somebody making her common law be grounds to stop?
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Joey, Expert

If child support was awarded as “compensation” – staying home with the kids while you advanced your career, then it’s likely it would continue. If it was awarded because of “need” and she then went into another relationship and her household income went up substantially, then she would no longer need any more money from you.

Customer
Ok. The second situation describes what happened.
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Joey, Expert

Then you would have an argument as to why it should stop.

Customer
If we are looking at redoing the separation agreement would me giving my ex 98,000 into her RRSP’s be considered to lower my spousal support? I gave her that money because she didn’t have any retirement savings. When we did our separation agreement we agreed to a lower amount because I gave her the 98k and I paid off her van (10,000) so her monthly expenses were lower. I’m wondering if the courts would look at that?
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Joey, Expert

Yes, they would look to any lump sum payments you made.

Customer
Ok great.
So just to confirm…
I would have a case for stopping spousal support when she had a baby because she was awarded spousal support because of a need and she was in a new relationship making her household income increase.And when looking at the amount of spousal support the 98k and 10k lump sum payments would be considered.
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Joey, Expert

Yes.

Customer
Based off my income being 100k and her income being 40k on the date of separation, and accounting for the lump sum payments what do you think a “fair” spousal support amount would be.
I know there are a lot of factors but I just want to see if what I was paying was “fair”
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Joey, Expert

Very difficult to say without going through each factor carefully. Here is a link to an online calculator using the guidelines. https://www.davidsonfraese.ca/spousal-support-calculator/

Customer
It doesn’t have any way to factor in lump some payments.When I put my information into the calculator the low amount was $265/month, the medium amount was $636/month. I was paying her 350/month. Would the courts see that as a fair number considering the lump sum payments? We also did not reappraise the house when she bought me out of the mortgage so that her mortgage would be lower, would this also be considered?
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Joey, Expert

If the court orders 5 years of payments, then the lump sum would go towards that total amount.

For your second question, likely not.

Customer
How much do you think the lump some would take off?
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Joey, Expert

For example: if it's $100 per month and 5 years is ordered, then that would be $6000. If you made a $2000 lump sum payment, then it would be $4000 owing over 5 years or $66.67/month.

Customer
Ok so this would be my situation …
If the court ordered me to pay the medium amount of $636 that would be $7632/ year over 5 years it would be $38,160.I paid her lump sums that totalled $108,000
That equals -69,840What do you think the courts would do with that?
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Joey, Expert

No spousal support owing.

Customer
Ok great thank you.
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Joey, Expert

Thank you for using JustAnswer. I wish you the best of luck. If you have any follow up questions about this matter, please do not hesitate to reach out to me.

Customer
Thank you!
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Joey, Expert

You're welcome.

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