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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 01-16-2006, 08:20 PM
FPI FPI is offline
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If the house we lived in was purchased prior to me getting married with my father would she be entitled to his half? My Father passed away November 5 2003; my mother is the trustee and beneficiary of all his assets, including the home my wife and I lived in. My wife's lawyer asked for the last will and testament, which I supplied. He also wants to know why my mother hasn’t probated the will. I know she does not have to. Would this be a problem?
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Old 01-16-2006, 08:53 PM
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FPI,

Do not be coerced into probating the estate by your ex's lawyer. That decision is made by the trustee/ executer alone. The lawyer is asking you a lot of questions mainly due to possibly pending claims under PART I of FLA -

as listed in the Family Law Act R.S.O 1990

http://www.e-laws.gov.on.ca/DBLaws/S...0f03_e.htm#BK4



PART I
FAMILY PROPERTY

Definitions

4. (1) In this Part,

“court” means a court as defined in subsection 1 (1), but does not include the Ontario Court (Provincial Division); (“tribunal”)

“matrimonial home” means a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date; (“foyer conjugal”)

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, calculated as of the date of the marriage; (“biens familiaux nets”)

“property” means any interest, present or future, vested or contingent, in real or personal property and includes,
(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c) in the case of a spouse’s rights under a pension plan that have vested, the spouse’s interest in the plan including contributions made by other persons; (“bien”)

“valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

2. The date a divorce is granted.

3. The date the marriage is declared a nullity.

4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.

5. The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”) R.S.O. 1990, c. F.3, s. 4 (1).

Excluded property
(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4. Proceeds or a right to proceeds of a policy of life insurance, as defined in the Insurance Act, that are payable on the death of the life insured.

Note: On the day the Statutes of Ontario, 2002, chapter 18, Schedule H, subsection 4 (1) comes into force, paragraph 4 is amended by the Statutes of Ontario, 2004, chapter 31, Schedule 38, subsection 2 (1) by striking out “life insurance, as defined in the Insurance Act” and substituting “life insurance, as defined under the Insurance Act.” See: 2004, c. 31, Sched. 38, ss. 2 (1), 4 (2).

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property. R.S.O. 1990, c. F.3, s. 4 (2).

Onus of proof re deductions and exclusions
(3) The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it. R.S.O. 1990, c. F.3, s. 4 (3).

Close of business

(4) When this section requires that a value be calculated as of a given date, it shall be calculated as of close of business on that date. R.S.O. 1990, c. F.3, s. 4 (4).

Net family property not to be less than zero

(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).


You could easily get proof of the current property owner by doing a title search of the same property at the land registry office. This would be sufficient proof of the current owner. The onus is on you to provide the proof that it belongs to the estate and not to you.
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Old 01-16-2006, 09:41 PM
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If the house is registered under myself and my father's estate can she make claim to the estate. I'm not sure has how to make out the family law act. Furthermore, can she have me removed? If so can the estate charge her rent.
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Old 01-19-2006, 09:04 PM
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I do not think she lay claim to the estate, but since the house is owned by you and the estate jointly she may be able to base a claim on your share of the house as it was a matrimonial home so to speak.

I think she would fail in her exclusive possession claim as the house is also co-owned by the estate.

If the estate wants to liquidate its value of the home, you would have to buy off the estate or the house could be sold etc and your value share would be paid to you.

I think the estate could charge a rent in agreement with you as you are a co-owner etc.
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