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ulysses101, Lawyer
Category: Canada Family Law
Satisfied Customers: 3470
Experience:  Over 10 years litigation experience in family, criminal, and civil law
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In my separation agreement with my X spouse I had put in the

Customer Question

In my separation agreement with my X spouse I had put in the agreement a co occupancy clause so if she had someone move in with her that it would release me from my alimony commitment to her, so my 25 year old son and his 25 year old girlfriend have just moved into her home with her and are also having their mail sent to her address my question is would that be considered co occupancy?
Submitted: 9 months ago.
Category: Canada Family Law
Expert:  ulysses101 replied 9 months ago.

Hello, thank you for the question. It's a good one, this is certainly worth investigating.

How long have you been paying spousal support?

Can you tell me exactly what that clause regarding termination by occupancy says?

Is your son and his girlfriend paying rent?

Customer: replied 9 months ago.
I have been paying spousal support for 5 years my X spouse is a real estate agent, I don't believe my son is paying rent, l was looking thru the agreement but now I don't see the cohabitant agreement? Just now that if she cohabitates that she is responsible for her own health care, I was positive that when I sat with the lawyer 6 years ago that I asked for it to be part of the agreement, I have the first draft of the agreement so I will have to look at that one, can you tell me have you ever seen a judge over turn alimony is there a chance after all this time it appears that my X spouse will only work till she doesn't make enough to have me fight the issue and she is currently behind approximately 2 maybe 3 years behind on her income tax I feel I don't have a leg to stand on as she seems to be able to work the system to her benefit I have since moved on bought a house excelled at my job met someone to share my life with seen my daughter graduate college and my son finish an apprenticeship and become a licensed pipe fitter all I want is to have this burden taken off and have my X spouse earn her own way with out my alimony
Expert:  ulysses101 replied 9 months ago.

OK, thanks for that detail.

There's a reason why I asked if the adult child was paying rent. If rent is being paid, then it's a commercial agreement and not "cohabiting" where your ex can depend on a new partner for support rather than you.

I've had lots of cases where the ex wife was entitled to spousal support as long as she was single. In some cases I've had to get a private investigator to find out how many nights per week her boyfriend stayed over in order to prove to that she was cohabiting in a spousal relationship.

But it strikes me as pretty obvious that whether she's getting rent from her child or not, she's not cohabiting in a spousal relationship. The income from her tenants might well reduce her need for support from you, but I doubt that any court would conclude that she's cohabiting (ie in a spousal relationship) because she's taken in her adult child and his partner.

You are looking at this rightly but in this particular instance I suspect that you don't have grounds to terminate spousal support due to her cohabitation.

Does that make sense?

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