Family Law with Carrie Campbell; Proving which version of the past is the right one can be costly

Updated: Feb 10, 2020

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Carrie Campbell

When couples reside together, but do not marry, the property issues are complicated. The Family Law Act, which deals with property division for married couples, does not apply to common law couples. Instead, couples must resort to case law, which has developed over the past few decades. If one party wishes to make a property claim, he/she will argue that there has been an “unjust enrichment”, claiming:

1. Your partner was enriched or benefited;

2. You have had a corresponding deprivation; and

3. There is no juristic reason for the enrichment.

These claims can be difficult and often end in litigation. It can be interesting to hear these cases in court, as they highlight how differently each person views their relationship, and his/her role in the relationship. I see the same thing as a mediator. I routinely let people know that it is ok, and in fact, it is entirely normal, for each person to see their past together, differently. The difficultly with litigating is that each person becomes very invested in proving that his or her version of the past is the correct one. The cost to try to do so is often extreme, and may even cost more than the claim itself.

I completely understand that litigants can feel very strongly about the strength of his/her position, but trials often take on a life of their own; you can never predict how the evidence will come out or how the evidence will be perceived by the Judge hearing the case. If you are continuing with a court case, simply to try to prove you are right, be very mindful of both the financial and emotional tole on you. Have a frank conversation with your lawyer about your chance of success, and the expectation of costs. Negotiating a resolution, that both parties can live with, allows you to have certainty, limit the costs involved and honour the decision to have had the relationship to begin with.

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