Jonathan Togo a star in CSI Miami has been arrested for felony domestic violence. The fact that Mr. Togo's crime is categorized as a felony rather than misdemeanour goes to the severity of the domestic violence. Such domestic violence convictions unsurprisingly would lead to longer sentencing. The 32 year old actor was released on the same day of the alleged abuse after he posted a $50,000.00 bail. According to Entertainment Tonight, the fight was between Mr. Togo and his unnamed girlfriend. One would question what implications this would have in a family law context situated in Ontario?
In Ontario, couples are considered to be common law partners if:
- the couple have cohabitated together for more than 3 years or
- the couple are in a relationship of some permanence, moreover they are biological or adoptive parents of a child.
If Mr. Togo and his girlfriend either lived together for more than 3 years or share a child, they would be considered a common law couple.
Common law couples do not have the same rights as married couples when considering the matrimonial home. Firstly, it is a misnomer to refer to a common law couple's home as the matrimonial home. It is considered a home of the relationship. Aside from the legal jargon, one of the differences in sharing a home as a common law couple is that the individual who lacks ownership in the home does not have any possessory rights that are granted to married couples. Meaning, Mr. Togo's unnamed girlfriend is not entitled to claim exclusive possession of the home because this right can only be granted when there is a married couple who share a home.
If Mr. Togo's girlfriend were considered a common law partner, she would not have legal recourse for possessing the home of the relationship because she is not married to Mr. Togo. However, Mr. Togo's girlfriend may get a non-harassment order (often referred to a restraining order) based on the domestic violence. She would have to prepare an affidavit with a comprehensive chronology of the abuse to substantiate that the abuse is a real threat to her. Once a restraining order is affected, Mr. Togo's girlfriend would most likely restrain Mr. Togo from coming within a certain radius from her. In this situation, in order for Mr. Togo to get his common law partner out of his home, he would have to take this matter to a Landlord and Tenant Board and establish that there is a landlord and tenant relationship and that there should be an eviction. Courts do not have the discretion to make an Order in a Family Court regarding the possession of the home when dealing with common law partners.
Another potential issue Mr. Togo would face if his girlfriend were considered a common law partner (e.g. lived together for 3 years or are living in a relationship of some permanence and they are parents of a child) is spousal support. The amount of spousal support for a common law partner is determined in a similar way as for married couples. Certain factors include (these are not an exhaustive list): your partner's income and your income; your partner's age and your age; ability of your partner to become self-sufficient; the standard of living when you lived with your partner; the contribution your partner has made to your career; and the economic difficulty suffered by your partner because of the relationship.
At the end of the day, this shows that married couples do have more protection in a situation of relationship breakdown. For instance, had Mr. Togo's girlfriend been married to Mr. Togo, living in Ontario and within the home, she would have a claim for an exclusive possession to the home because there is a statutory mandate, namely under the Family Law Act, under Part II. In turn, Mr. Togo would be forced to leave the home, if her claim to exclusive possession were successful.