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Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 98985
Experience:  Lawyer
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I am the mother of a deceased son of six months, who was in

Customer Question

I am the mother of a deceased son of six months, who was in a on again off again commonlaw relationship, she currently has been given the letters of administration as a common law spouse and has claimed all assets in her name, as well she had put a notice of dispute on the estate in July 2015. Rule 25 I believe. I feel she may not have been a commonlaw spouse and was curious if I can revoke this claim. Please advise how and or why I should or shouldn't. Thank you. Please give me a yes or no answer if it is worthwhile or not. I do not have a lot of money.
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

What province is this please?

Are there any children?

Was there will?

Customer: replied 1 year ago.
BC
No children
No will
Expert:  Debra replied 1 year ago.

Were they living together when your son died and how long was she living with him since they got back together?

When they separated last time how long was the separation for?

Did your son have assets in his name alone?

Customer: replied 1 year ago.
cant afford it. on disability
they were living off and on as he had a drug problem and went to get help in a different city
they were separated less than 2 years but they lived together of and on several times for months at a time
yes he had a home but they moved in it together at the time of purchase
Customer: replied 1 year ago.
they have been together for almost 14 years
Expert:  Debra replied 1 year ago.

But what I am asking is if they were together for 14 years often on and had long separations when they reconciled this past time how long were they living together for since they reconciled and when they were separated the last separation how long was that?

I am asking about the title to the home. Were both names on title to the home?

Customer: replied 1 year ago.
The home is in his name but the realtor says they were together when they purchased it and she has messages saying that as well
They were not living together but he and her were often out of each other's house homes for the last two years and more than 90 days I read about
Expert:  Debra replied 1 year ago.

It does not sound to me that they were at all. Common laws spouses are people who live together in a marriage like relationship. They live together and are financially and emotionally and socially interdependent. They make major decisions together and act just as if they were legally married without having gone through the ceremony.

If they both had their own houses and went up and back that doesn't sound to me like it's a common-law marriage at all.

I suggest that you consult with a lawyer face-to-face as soon as possible. It seems that she is claiming Have been common-law spouses for estate purposes when she was not a common law spouse.

Customer: replied 1 year ago.
Actually she lived with her mother when he was on drugs heavily and he also developed psychosis. I guess because they did take care of each other, eat meals, celebrate Christmas and birthdays she had a celebration of life for him. They were off and on because of the drugs. I worry these things may justify common law. yes or no . I do not want to waste time money and stress.
Expert:  Debra replied 1 year ago.

These factors do not add up to making a common law relationship. They had to be living together just as if they were legally married.

Customer: replied 1 year ago.
ok but I have read the new BC laws and they were living together up until July 2013 and off and on with more than 90 days in the same household, so it scares me to waste my time and money was hoping for a clearer answer, I guess based on these laws that changed in 2013. Again would hate to fight and lose somehow. Is it worth the risk?
Expert:  Debra replied 1 year ago.

The 90 days is how long they have to separate before it stops the clock from running.

And if they were not living in the same house in the last couple of years they are not common law spouses.

But don't decide now. Your next step has to be to consult with a lawyer face to face.

Customer: replied 1 year ago.
ok thanks I will take this into consideration. get the holidays over
Expert:  Debra replied 1 year ago.

You are very welcome.

I hope things work out.

Customer: replied 1 year ago.
Thank you. (for my $54 question) Merry Christmas. or Happy Holidays
Expert:  Debra replied 1 year ago.

The same to you!

Customer: replied 1 year ago.
I just found this information on the new laws, sounds completely different than what you told me. Maybe refund my money. Now I am second guessing your answer. SorryFamily Law Act
[SBC 2011] CHAPTER 25
Part 5 — Property DivisionDivision 1 — General RulesEqual entitlement and responsibility
81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division],(a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.Rights and remedies of third parties
82 Nothing in this Part affects the rights and remedies of a spouse's creditors, guarantors or assignees in relation to family debt.Division 2 — Determining Family Property and Family DebtInterpretation
83 (1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,(a) they begin to live together again and the primary purpose for doing so is to reconcile, and(b) they continue to live together for one or more periods, totalling at least 90 days.(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.(3) For the purposes of this Part, property received by a spouse from a trust in respect of the spouse's beneficial interest in property held in the trust must be considered to be property derived from that beneficial interest.(4) In this Part, "property" includes a beneficial interest in property unless a contrary intention appears.
Expert:  Debra replied 1 year ago.

You are not fully understanding me or what you are reading. That makes sense as you are not a family lawyer but I am. The law wants to promote attempts at reconciliation and that is what the 90 days is about. But the point here is that they were not common law spouses because they celebrates holidays and ate meals together if they had two separate homes and lived separately.

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