Stay At Home Parents: What are my rights when we separate?

I stayed home with our kids while my spouse worked. What can I ask for if we separate?

When one spouse is able to build up savings, work experience, assets, and other benefits from working, the law recognizes that the other spouse may have contributed to these things.  If you were married, the division of your property is based in part on this assumption.  The law does differ if you were married or living together, but in either case you will be requesting similar things - a share of property, and support for you and your children.

Spousal Support

You may be entitled to spousal support.  To claim spousal support, you must have been married; lived together for at least three years; or lived together in a relationship of some permanence and had children.

To claim spousal support, you must prove "entitlement".  One ground of "entitlement" is "compensatory" support.  This is a common ground of entitlement when one spouse stayed home and was unable to gain work experience, seniority, education, etc.  Once you establish entitlement, the amount ("quantum") and duration of support are determined.  The amount and duration depend on many factors, including your spouse's income, the length of the marriage, the age of your children, and more.

Child Support

Regardless of whether you were married or not, your children are entitled to child support.  You may pay or receive child support depending on the parenting schedule.  In addition to the parenting schedule, child support depends on the payor's income and the number of children.  Child support consists of two parts: the Table amount, paid monthly; and special expenses.  You can learn more about child support in these posts:

Property Division

If you were married, you have an automatic right to share your spouse's assets.  This includes things such as their employment pension, which can have a significant value.  The division process is called "equalization", and accounts for all the assets and debts you accumulated during your marriage.

If you were not married, you will need to make a trust claim.  In family law, these claims are often based on "unjust enrichment".  You would need to prove three things:

  1. Your former spouse received a benefit (such as building up a pension);
  2. You suffered a loss corresponding in some way to the benefit (such as being unable to build up a pension because you sacrificed your career to support theirs); and
  3. There was no "juristic reason" for the benefit and the loss.  “Juristic reason” means a reason based upon law for the enrichment of one at the detriment of another. 

Regardless of whether you were married, you can make a claim for the division of their Canada Pension Plan benefits.

The Matrimonial Home

If you were married, the home you live in on the day you separate is called your matrimonial home.  If one or both of you own the home (as opposed to renting it), you have special rights.  These rights apply even if your name is not on the home.

If your spouse was the sole income earner, their name might be the only one on title.  Even so, you have a right to live there after the separation until there is a court order or agreement stating otherwise.  Your spouse cannot change the locks or kick you out.  In some circumstances, you can even ask to live in the matrimonial home without your spouse.

Unfortunately, these special rights do not apply to common-law couples.

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