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Old 04-02-2010, 03:04 PM
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Hello all,

I'm new to this and I need some feedback. I apologize for this lengthy message but my situation is really complicated.

My husband and I are on the verge of separation. We previously separated back in 2001 and had a legal separation drawn, signed by both parties & our respective lawyers and finalized in 2004. The separation paper addressed our pensions, insurance, and child support. However, we reconciled at the end of 2004. Our separation paper has no clause/stipulation on how we would treat our assets in the event that we reconcile.

I bought a house solely under my name (both the title and mortgage) in November 2004. At that time, my husband and I reconciled and we verbally agreed that he was just going to pay me rent but the house is mine. All the downpayment, closing costs and any renovation or maintenance costs I paid for. He contributes a fixed amount every 2 weeks to pay for food, gas, rent, cable, telephone, internet, etc. My husband has had no credit history or rather his credit was so bad that he couldnt apply for a loan or credit card, until 2 months ago when he was finally able to get a credit card. Car loans are also under my name. I have my own credit cards and like I said he was just able to get a credit card 2 months and he is no establishing his credit.

Questoin 1: The house that I bought is our matrimonial home. Will the equity built be split 50/50 in the event that we file for separation or divorce even though he didnt put any money towards the downpayment, closing costs, or maintenance/renovations cost? Part of the downpayment was my RRSP and I'm still repaying it.

Question 2: Is the separation paper that we signed back in 2004 considered void or got voided when we reconciled in 2004 and we didnt have a co-habitation/reconciliation agreement? Would we have to go through an equalization process to determine pension split or insurance.

Question 3: Do I have a right to ask him to leave from our matrimonial home given that both title and mortgage are under my name?
In January and February, on 3 occasions, we had an argument and he
hit me during the agreement? Can I use this an excuse to make him to leave even though it's my words against his?

Question 4: We make about the same amount of money, will I be able to claim for spousal support and claim financial hardship if the value or equity of the house be split into 50/50 share?

Question 5: We have a car right now that is also under my name and the loan is also under my name. Does he have a claim for that car or can he take it away from me?

Question 6: I have contributed towards my kids RESP, if and when we separate, how can I ensure that he pays his share of our kids education costs?

Question 7: Now that he has a credit card, would I be responsible for any debts he incur under his credit card?

Your feedback is much appreciated.

Positive.
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Old 04-02-2010, 08:22 PM
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1. The house is the matrimonial home, you are married, it will be split 50/50.
2. The separation agreement is void. There is some leeway, if you got back together for a few months and then split again, but for you it has been a 6 year "reconcilliation". If you had pensions valued and split 6 years ago, then that would have been permanent and you would just go back 6 years this time around.
3. The law is clear, it doesn't matter who bought the house, who's name is on the deed, etc. It is the matrimonial home. It is also the husband's legal residence and he has rights to occupency.

As far as him hitting you on three occasions, did you call the police? Did you press charges? Are there witnesses? You should have cause to have sole possession for this reason, however if you haven't reported the assaults, why? His lawyer will ask this, he will deny hitting you, they will argue this is just a ploy. You need to protect yourself by calling the police in a situation like this, pressing charges and getting a restraining order. My mother was abused by my father and I understand full well the toll this has taken on you, and I understand how you felt and why you didn't. But you can't expect the law to protect you magically if you aren't able to show these things.

4. You make about the same amount of money, why would you claim any amount of hardship or spousal support and he cannot make the same claim? This isn't about taking sides, the law won't take sides. It is really just like math, 1 -1 = 0. You make a claim, he makes the same claim. which side should the courts pick?

What you are dancing around is called "Unjust Enrichment" which would be, in a very short relationship, even though the law says that the mat home should be split 50/50, one party would get a riduculous settlement. But in your case you have been together since 2004, that is not a short marriage.

His lawyer will also look at what happened before that split, since you were never actually divorced. How long were you together before the first split? Where did you get the money to buy the house from? Some was RRSP's, what about the rest? They will argue their side here.

You've been together 6 years straight, that is usually far too long for unjust enrichment, but let's say the first time around, you supported him, the first equalization was primarily money you had saved and invested, then you split the pot and he came out well ahead the first time. You might have an argument there, but it would have to be pretty extreme numberrs.

5. The car itelf is yours just like your clothes, but the value of the car will have to be added to your net worth for equalization. Take into account the amount you owe on the loan, and depreciation, it may even work in your favour. In either case, he can't take the car (if it is in your name, if he tries, call the police and report it stolen).

6. The kids education is a section 7 expense, you both have to contribute according to income (which is fairly equal anyway). The kids would have to do their best (scholarships, etc) and you two split the remainder. Your RESP contributions should cover some or all of your share (probably only some unless you have been saving like crazy). He will have to come up with his share as a section 7 expense.

7. Any debts he has up until separation will be part of his net worth for equalization. Any debts incurred after separation are his problem. I do hope that is not a joint credit card, or that it is secured against the house, you need to check on that immediately. That complicates things but it can be dealt with, just don't ignore the possibility.
  #3 (permalink)  
Old 04-04-2010, 04:45 PM
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Quote:
At that time, my husband and I reconciled and we verbally agreed that he was just going to pay me rent but the house is mine. All the downpayment, closing costs and any renovation or maintenance costs I paid for. He contributes a fixed amount every 2 weeks to pay for food, gas, rent, cable, telephone, internet, etc.
Question 1: The house that I bought is our matrimonial home. Will the equity built be split 50/50 in the event that we file for separation or divorce even though he didnt put any money towards the downpayment, closing costs, or maintenance/renovations cost? Part of the downpayment was my RRSP and I'm still repaying it.[/quote]

Here's how this will play out, you'll claim as above, he'll deny it, and the sucker will get split 50-50, or pretty darn close to it as part of the equalization. However, you should be able to put in the total debt still owed against the RRSP on your income statements, so your net worth will drop accordingly and you will be entitled to a larger amount of equalization (in theory anyway)

Quote:
Question 2: Is the separation paper that we signed back in 2004 considered void or got voided when we reconciled in 2004 and we didnt have a co-habitation/reconciliation agreement? Would we have to go through an equalization process to determine pension split or insurance.
Null/Void, you reconciled, it lasted for 6 years. You will have to redo the equalization (though the process should be faster since you already have the basic numbers available anyway from the old agreement)

Quote:
Question 3: Do I have a right to ask him to leave from our matrimonial home given that both title and mortgage are under my name?
In January and February, on 3 occasions, we had an argument and he
hit me during the agreement? Can I use this an excuse to make him to leave even though it's my words against his?
Nope. Like Mess said, unless you reported it and had him removed by the police, it's your word against his.

Quote:
Question 4: We make about the same amount of money, will I be able to claim for spousal support and claim financial hardship if the value or equity of the house be split into 50/50 share?
Nope. Your NDI would have to fall below 45% of his for you to be eligible for spousal support. If you make the same amount of money, that automatically takes that out of play.

Quote:
Question 5: We have a car right now that is also under my name and the loan is also under my name. Does he have a claim for that car or can he take it away from me?
Nope, he can't take it away from you. Though if he has a spare key, I would either get it back from him, or shell out the few hundred needed to change the locks. If it was purchased after the marriage, there is nothing stopping him from simply driving off with it if he has a key.

Quote:
Question 6: I have contributed towards my kids RESP, if and when we separate, how can I ensure that he pays his share of our kids education costs?
Like Mess has already indicated, he's responsible for his share of section 7 expenses,and college/university falls under that category. The child will be expected to contribute as well through loans/bursaries/savings/etc to the tune of at least 1/3. The parents are expected to pony up the remainder either 50-50 or proportional to income. (which in your case is going to be nearly 50-50 anyway). No you cannot force him to contribute to the RESP. It's voluntary. (it's in his own best interest to do so, but you can't force it). He'll still be expected to contribute his fair share when the time comes.

Quote:
Question 7: Now that he has a credit card, would I be responsible for any debts he incur under his credit card?
If it's JUST in his name, no. It would go under his financials as a debt. (just like your car/car loan would)
  #4 (permalink)  
Old 04-04-2010, 08:36 PM
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Default Debt after Date of Separation

Be careful how you define joint debt, i.e. the mortgage, from the matrimonial home is still the responsibility of the person who either left or was forced to leave the home.

The issue of occupational rent, which I do not know a great deal about, may help to offset the joint debt, but I do not believe you would be responsible for maintenance expenses including any renovations that were incurred without your permission regardless if the house was going to be sold.

Other property that involves joint debt is in the possession of one of the parties can still be the responsibility of the other to pay.
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