A parent who does not have day-to-day care and control of the children usually will be responsible for paying child support. The amount is based on that parent’s income and on the special and extraordinary expenses of the children.

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.

Ontario’s Family Law Act provides a formula for dividing the value of assets and debts that were acquired during the marriage. The method is called equalization of net family properties. Each spouse must fill out and swear a financial statement. The financial statement lists all assets that each spouse owned on the date of separation, all debts that each spouse owned on the date of separation, all assets that each spouse owned on the date of marriage, all debts that each spouse owned on the date of marriage and any gifts or inheritances that each spouse received during marriage. The financial statement will be used to calculate each spouse’s net family property. In the end, the spouses’ net family properties will be equalized.