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Read as Family Lawyer Ira Marcovitch breaks down the question of pension entitlement in a common-law relationship:

I was in a common-law relationship for 13 years. We have 2 children together. He is taking out his $100,000 union pension and returning back to Ireland for good. Am I entitled to half of his pension?

If you are a common-law spouse and wish to make a property claim, speak to an experienced family law lawyer.

Entitlement to property for common law spouses is one of the most commonly misunderstood areas of family law, and can be one of the more complicated. If you are a common-law spouse and wish to make a property claim, speak to an experienced family law lawyer. When married spouses separate, they are entitled to an equalization of their net family properties under Part I of the Family Law Act. This allows spouses to share the increase in their individual net worth over the life of the relationship. However, common-law spouses to not have access to Part I of the Family Law Act. For a common-law spouse to make a successful claim for property, they will have to establish, generally, that they contributed to the value of the asset in a way that has not already been compensated for. If successful, a court may impose a ‘trust’ – a legal remedy whereby your spouse (the legal owner of the property) holds some portion of the value of the asset for your benefit.

With regards to pension property, there are two categories of pensions for family law purposes: CPP and everything else. A common-law spouse is entitled to claim a division of CPP pension credits that accumulated during the relationship, provided that they have cohabited for at least a year. For all other pensions, the traditional rules of family property apply, and common-law spouses do not have an automatic right to them. However, if you can demonstrate that you somehow contributed to the growth of his union pension, you may be entitled to a portion of it.

Since your spouse is ‘taking out’ his pension, I assume that he is retiring from the job. If this is the case, then his monthly pension payments can be included in determining his income for spousal and child support purposes. If you can establish an entitlement to spousal support, you may get ‘part of the pension’ through the payment of spousal support. In the event that your children are still entitled to child support, your ex-spouse’s income will most often be included in his income for child support purposes.

If you have any questions regarding pension entitlement in the family law context, contact one of the experienced family law lawyers at Nelligan O’Brien Payne.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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