Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law

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

Closed Thread
 
LinkBack Thread Tools
  #1 (permalink)  
Old 02-03-2013, 02:19 PM
Member
 
Join Date: Jan 2013
Posts: 34
Hatingit is on a distinguished road
Default Motion for sale of the matrimonial home.

Long story short.

I first received a letter from my stbx lawyer demanding that I give my spouse $10,000 or she will file a motion for sale of the house.

I don't give her the money, and I receive the notice of motion as threatened.

The situation is that since she moved out I have been living with our two children in the house since she left. Ten months.

She has been underpaying child support since September 2012. She has also failed to pay section seven expenses. (These are significant in our case)

She claims that her financial situation is dire despite not meeting these obligations. That is only possible because of legal bills which are the result of some very aggressive legal tactics and constant letters she has her lawyer write making demands.

Anyhow, we have had two case conferences that have been ineffective. And have a settlement conference set for March. We are also waiting for the completion of an OCL investigation/report. I have defacto custody; there is no formal custody arrangement in place.

We are both seeking an unequal division of property- she wants to include a family cottage as a marital asset and disallow certain debts and I of course disagree.

My position is that I would like buy the home; however, it depends upon how the equalization calculations work out. They vary from me owing her $100,000 to her owing me over $200,000. How this works out will determine my ability to buy her out or not.

We haven't resolved any of these financial issues yet, so I believe it is premature to force sale of the house. I also believe that it would be incredibly disruptive to the children (daughter 16, son 13). I further believe that this isn't an urgent matter. I also would think that until custody and the OCL report are completed that any motion regarding the house is premature.

What are the odds of her being successful ? What issues do you see?
What are the costs likely to be for this type of motion?

Any comments would be appreciated.
  #2 (permalink)  
Old 02-03-2013, 03:56 PM
Senior Member
 
Join Date: Apr 2011
Location: Kingston, ON
Posts: 968
ddol1 is on a distinguished road
Default

I will not say too much here - just what I know from my case. We to should have unequal division of property which will have a large impact on equalization. Our judge already said that the house will need to be sold it looks like and selling it now would be premature as the proceeds will just end up being held by the court pending final resolution of the equalization. (the judge understands that the house proceeds is the only way to cover the equalization either way. OUr children are older with two still in college (one graduates this May and the youngest will have one more year to complete her study. Not sure if this helps you much but our house is not up for sale at this point either - just no point with all the outstanding - but you should try and find a similar case on CANLII which I would think should have several as this is a common issue IMHO???

Costs are simple, if the motion is to sell the house today then the judge will have two choices, sell or not and whatever the result, the losing party will be subject to paying the "winning party's" legal costs for that issue. Just a guess based on my experience, the lawyers in my case have had costs of $4,000 to a motion for SS. You can never say what the other lawyer will ask for costs but the judge has the authority to assign costs at a lower amount - judge makes the final call.

Last edited by ddol1; 02-03-2013 at 04:04 PM.
  #3 (permalink)  
Old 02-03-2013, 03:58 PM
hadenough's Avatar
Senior Member
 
Join Date: Sep 2011
Posts: 2,468
hadenough is on a distinguished road
Default

Are you self-rep'g?

Equalization of the assets etc is one major issue.

Hopefully Mess, Orleanslawyer and Hammerdad will get in on this thread to shed a better light. Sounds like a nightmare.

Edit: try not to "believe" too much - get facts. I am commenting on what you state your beliefs are, up above. You need relevant information, and Case Law similar to your situation. If you do not have a lawyer - get one.

Last edited by hadenough; 02-03-2013 at 04:01 PM.
  #4 (permalink)  
Old 02-03-2013, 04:47 PM
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

Quote:
Originally Posted by Hatingit View Post
I first received a letter from my stbx lawyer demanding that I give my spouse $10,000 or she will file a motion for sale of the house.
It's hard to give you an analysis here. Why did she expect $10,000?

Quote:
I don't give her the money, and I receive the notice of motion as threatened.
Ok, at least you know what to expect from them.

Quote:
The situation is that since she moved out I have been living with our two children in the house since she left. Ten months.
It sounds like you are sitting on the assets and she is in a position of having to start over with nothing (at the moment.) The house is half hers; are you paying her rent? What is the mortage payment? Who is covering that? If she is trying to set up a household that is suitable for the children to stay, and you are living in the mat home, then she has cause to ask for an interim equalization amount.

Quote:
She has been underpaying child support since September 2012. She has also failed to pay section seven expenses. (These are significant in our case)
She doesn't get a cookie for this, however does she have any access to her assets? She is in arrears, this will be factored in later, but doesn't directly affect the equalization.

Quote:
She claims that her financial situation is dire despite not meeting these obligations. That is only possible because of legal bills which are the result of some very aggressive legal tactics and constant letters she has her lawyer write making demands.
Have you made her a reasonable offer to settle? Conflict is rarely entirely one-sided. What are you offering her?

Quote:
Anyhow, we have had two case conferences that have been ineffective. And have a settlement conference set for March. We are also waiting for the completion of an OCL investigation/report. I have defacto custody; there is no formal custody arrangement in place.
Custody and access are part of the dispute; this is never cheap, and rarely fault of one party.

Quote:
We are both seeking an unequal division of property- she wants to include a family cottage as a marital asset and disallow certain debts and I of course disagree.
There is case law to support seeing the cottage as a second maritial home. It depends on the circumstances of course. Look, settling out of court means bending and coming to a compromise. I don't know enough about your situation, but if you aren't bending, you can't then complain that legal fees are somehow unnecessary.

Quote:
My position is that I would like buy the home; however, it depends upon how the equalization calculations work out. They vary from me owing her $100,000 to her owing me over $200,000. How this works out will determine my ability to buy her out or not.
Was the cottage owned by you prior to the marriage? If so, I can see your position. If the majority of it's value accrued during the course of the marriage, then you are going to spend $50k fighting over a few thousand.

Quote:
We haven't resolved any of these financial issues yet, so I believe it is premature to force sale of the house. I also believe that it would be incredibly disruptive to the children (daughter 16, son 13). I further believe that this isn't an urgent matter. I also would think that until custody and the OCL report are completed that any motion regarding the house is premature.
She can't force the sale of the house until equalization is settled, otherwise there nothing to go on. However if you are not on strong ground with version of the family property split, you need to be prepared to rethink your plans.

Quote:
What are the odds of her being successful ? What issues do you see?
What are the costs likely to be for this type of motion?

Any comments would be appreciated.
I think her odds are poor based on the information you give, however it's not clear which of you has the more reasonable position overall.

I believe that maintaining the stability of the children's residence will be the compelling issue for the judge, in that you can present an argument that the final equalization settlement is unclear and probably won't be settled at a motion hearing. So the judge won't kick the kids out of the house when it isn't clear that you will have to sell to pay the equalization. This should be the crux of your argument.

For a motion hearing, if it is this one issue, I would guess around $5k each, depending on how much time the lawyers have spent preparing the pleadings and how much time they spend waiting around the courthouse for the motion to be heard. It could be a lot more.
  #5 (permalink)  
Old 02-03-2013, 05:14 PM
Member
 
Join Date: Jan 2013
Posts: 34
Hatingit is on a distinguished road
Default

Thank you for response mess.

The cottage property is an unsusal situation and is in the very least a trial able issue. I won't get off track going over this particular issue here. That said there is case law that supports my position.

The $10,000 is a number she made up. She claims it is necessary to buy a car. She makes about the same amount of money as I do, yet I have been paying all of the kid's expenses.

As for the house. Yes, I am "sitting on the asset" where the children are living. Sale of the house will require renting at a higher amount than the mortgage. I have paid the mortgage and all of the upkeep since she left. The mortgage payment is $3,200/month.

I have not paid her rent, but she hasn't paid her share of the mortgage. Sort of an offset.

I have made repeated suggestions that we go to mediation. All were refused.

I made her a very generous offer, greater than she could ever win in court (even if she won on every disputed amount). She refused.

In the mean time she has brought this motion.

At the end of the day, my position is that I want the opportunity to buy her out once the final equalization numbers are figured out. Her position is that she wants the money now.

From what I understand, so long as the issues regarding equalization are not settled the proceeds from any sale would go into trust anyhow. So the kids would be dislocated and it wouldn't satisfy her desire for money any time soon.
  #6 (permalink)  
Old 02-03-2013, 05:23 PM
Member
 
Join Date: Jan 2013
Posts: 34
Hatingit is on a distinguished road
Default

I offered her a proposition where she would only pay table child support. I would leave her with her pension (200,000), I would forgo section 7 expenses ($30,000 per year), I would pay for private school for my son, and pay for summer camp and university for both kids.

I asked to keep the house (which she doesn't want). Basically, I would forgo the equalization that she owes me in exchange for the equity in the house. She winds up far ahead with this offer.

She would have a large disposable income and the range outcome has her between 225,000 and 500,000 ahead as compared to best case and worst case scenarios.

She would be making $95,000 per year, and can get along quite nicely with only table payments to make.
  #7 (permalink)  
Old 02-03-2013, 06:02 PM
Senior Member
 
Join Date: Jul 2012
Posts: 483
firhill is on a distinguished road
Default

Quote:
Originally Posted by Hatingit View Post
I offered her a proposition where she would only pay table child support.
As opposed to what?

I'm just curious as I thought the only determination of CS due was as per the guidelines/table amount.
  #8 (permalink)  
Old 02-03-2013, 06:08 PM
Member
 
Join Date: Jan 2013
Posts: 34
Hatingit is on a distinguished road
Default

As opposed to paying her share of section 7 expenses and splitting her pension. Also not asking her to pay her share of current private school expenses and future university expenses.
  #9 (permalink)  
Old 02-03-2013, 06:13 PM
arabian's Avatar
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 9,844
arabian will become famous soon enough
Default

"cottage" - was it an inheritance or in someone's family? Some cottages are quite valuable, depending upon which part of the country you live in.

Just curious why you mention it and then backtrack about it.
  #10 (permalink)  
Old 02-03-2013, 06:23 PM
Member
 
Join Date: Jan 2013
Posts: 34
Hatingit is on a distinguished road
Default

Cottage:

Cottage is my mother's cottage.
Prior to marriage, it was put into my name and my brother's name. It was done as part of estate planning. There was an expiring capital gains exemption at the time.

There is a mortgage on the property that my mother holds. It is a year round place that we came to on summer weekends. There is a main cottage and two bunkies. We stayed in one of the bunkies.

My mother occupies the main cottage all summer. It is her place and she has paid all of the expenses. She has control over who comes and who goes.

Anyhow- there is case law which would suggest that we didn't ordinary occupy the cottage and is therefore not a matrimonial home. She disagrees

I didn't bother with explaining all of this (and there is more) as it can be a discussion into itself.
Closed Thread


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On
Trackbacks are On
Pingbacks are On
Refbacks are On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Matrimonial Home question again.... rcooper Financial Issues 29 10-05-2011 11:54 PM
Ex left the country - matrimonial home MonW Divorce & Family Law 5 10-05-2011 09:56 PM
Matrimonial Home, Residency and Residential rights zoltar Divorce & Family Law 1 08-20-2011 12:04 PM
Home Ownership Matrimonial Home? epinecone Financial Issues 11 11-08-2010 09:28 PM
possession of matrimonial home Hanging On Divorce & Family Law 3 01-04-2006 01:20 AM


All times are GMT -4. The time now is 08:08 PM.