The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property—a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.

Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.

When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses while there is no legal authority or presumption to do so.

The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15-year relationship.

The appellate court reduced Ms. Leclair’s award to $70,000.

Before mediation begins, the spouses will decide whether the mediation will be open or closed. In open mediation, the mediator may be asked by either spouse to write a full report on what happened during the mediation including the reasons why it was not successful. If the mediation is not successful and the case proceeds to court, the report may be considered by the judge. Also, the mediator may be required by either spouse to testify in court. In closed mediation, the information exchanged by the spouses is confidential. The mediator’s report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed mediation, neither spouse can compel the mediator to testify in court.

Child support is paid as long as the child is a dependent. Usually, a dependent child is one who is under the age of 18 years. In some instances, child support may continue past the age of 18 years if the child is not financially self-sufficient because of an illness or disability or because the child is going to school full time.