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-   -   How to response to Motion to force sale home? (http://www.ottawadivorce.com/forum/f3/how-response-motion-force-sale-home-21020/)

joe19 05-11-2017 12:45 PM

How to response to Motion to force sale home?
 
Hi All,
Please advise if anyone has experience on how to response for motion of force sale home?
I have to self representing as can not afford a lawyer and not qualified for Legal Aid.

Bio:
-have 3 kids- 2 stays at university and come back home in summer; one is U17 still say with me
-my ex still live in the house and retained a lawyer
- I file for divorce as applicant on 201611 and she responded.
-No case conference yet
-Have gone trough mediation but broke down on pay out and now she retain a lawyer

trinton 05-11-2017 12:56 PM

Quote:

Originally Posted by joe19 (Post 220480)
Hi All,
Please advise if anyone has experience on how to response for motion of force sale home?
I have to self representing as can not afford a lawyer and not qualified for Legal Aid.

Bio:
-have 3 kids- 2 stays at university and come back home in summer; one is U17 still say with me
-my ex still live in the house and retained a lawyer
- I file for divorce as applicant on 201611 and she responded.
-No case conference yet
-Have gone trough mediation but broke down on pay out and now she retain a lawyer

Doesn't seem the kids would be effected by it. Is there any equalization payment issue outstanding ? Are you seeking exclusive possession of the home? Why are you opposing the sale? See case below.

Quote:

Although there is clear jurisdiction under the Partition Act to order the sale of the parties' matrimonial home I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment),
should not be made as a matter of course. See Binkley v. Binkley (1988), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be
taken into account.
source: https://www.canlii.org/en/on/onsc/do...&resultIndex=1

joe19 05-11-2017 01:12 PM

House in both names and mortgage is 240K
i have been trying to buy her out and offered her since 2015.
Variance of $40,000
CS of $1050 and SS of $120
asking my MZ 2012 car under my company name not matrimonial
MY ex asking for current market price
please advise
Thanks

Janus 05-11-2017 02:24 PM

Quote:

Originally Posted by joe19 (Post 220484)
i have been trying to buy her out and offered her
MY ex asking for current market price

Are you trying to offer less than market price?

If so, and she refuses, then you have no legal remedy. Offer her market price or sell the house.

Stillbreathing 05-11-2017 03:10 PM

Interesting case law Trinton. In my case the sale of the marital home was forced before trial. I could not buy out my ex's share as I had to come up with 100% of the value of the home including my share! Then this money was to be held in trust as ex said I was not entitled to any money after a long term marriage. I did come up with the $ via a private broker but the interest rate was astronomical so I said no.
End result was that the kids and I were homeless for a period of time living out of my vehicle! None of the kids will forgive him for this ( I didn't tell them he did this, they figured it out).

Now that trial is upon us, it turns out he owed me the home paid for and more, yet I was forced to sell it and the kids made homeless!
Lawyer told me I can't get the house back but we are asking for real estate fees back.

A case like mine is a prime example why the house shouldn't be forced to be sold until trial or a settlement agreement has been reached!

joe19 05-12-2017 01:44 AM

During mediation, offered her market price
but there us a price jump in my area
now she wants bee market price
should it be at seperation value?

Janus 05-12-2017 11:31 AM

Quote:

Originally Posted by joe19 (Post 220508)
During mediation, offered her market price
but there us a price jump in my area
now she wants bee market price
should it be at seperation value?

If you owned the house yourself, then the value of the house would be the value at the separation date.

In this case, however, you both own the house, so you both get to gain from the increase in value.

Different situations. I'm assuming that yours is the latter, which means that it is reasonable for her to ask for the current market rate.

North of 40 05-13-2017 06:04 AM

Janus is correct. Exact same thing happened to me.

I paid her out as quickly as I could (half the value - minus half the debt). Glad I did. Real estate went up massively since then. Recovered all my money paid out.

GTA house pricing went up 6 % one month. Tax free. Good luck

Stillbreathing 05-13-2017 10:05 AM

Quote:

Originally Posted by North of 40 (Post 220557)
Janus is correct. Exact same thing happened to me.

I paid her out as quickly as I could (half the value - minus half the debt). Glad I did. Real estate went up massively since then. Recovered all my money paid out.

GTA house pricing went up 6 % one month. Tax free. Good luck



?????????????????
You only had to pay 1/2 the debit and 1/2 the equity????????


What the ...., is going on in family law? I was told I had to pay for 100% of both the debt and equity! I could easily have come up with that .
In my case I had to come up with it all and the money would be held in trust .
Can't believe there are two sets of laws even in family court.
You must be mistaken.

Berner_Faith 05-13-2017 11:56 AM

Quote:

Originally Posted by Stillbreathing (Post 220559)
?????????????????

You only had to pay 1/2 the debit and 1/2 the equity????????





What the ...., is going on in family law? I was told I had to pay for 100% of both the debt and equity! I could easily have come up with that .

In my case I had to come up with it all and the money would be held in trust .

Can't believe there are two sets of laws even in family court.

You must be mistaken.



I think you are talking about the same thing... the ex was responsible for half the debt on the house and he really only had to pay her half the equity... remortgaging would take care of the debt and payout. There are not two sets of rules... it's simple math. That being said, you are both entitled to fair market value so offer fair market value in a proper offer to settle.

House was worth $200k
Mortgage is $100k

Ex gets $100k equity
OP gets $100k equity

They are each responsible for $50k of the debt, thus the payout to the ex is only $50k not $100k so half the equity and half the debt.

If you are saying you have to come up with all of it are you saying your ex wants to full $100k equity on the house rather than just their 50% share?


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