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  • Motion to sell home & Offers to Settle

    Won't get into too much background but facts are essentially this:
    1. After 14 months still living in the house together
    2. She sent a lawyer letter proposing settlement and sale of the home, relevant highlights included:
    - she wants $142K from the sale of the home to pay off a home equity line of credit against a rental property we own in her name. She is claiming that it is a debt of the matrimonial home because the withdrawals from this line of credit were made to pay down our principle residence. Which is true over the last 4 years I took money from there, but also money from my bonuses, my investment accounts, my sale of a rental property, all payments came from my bank account. She provided copies of cheques from the line of credit being paid to me with memo saying for home mortgage as proof the rental line of credit is a debt of the matrimonial home. I have documentation showing the line of credit is secured against the rental condo and all mortgage payments come from my bank account.
    3. I sent a very short letter with my offer to sell the house with a week deadline to respond otherwise I go to motion.

    My questions are:
    1. How best to refute her claim (which she will also claim at motion) that the rental condo line of credit should be paid from the proceeds of the sale of the matrimonial home?

    2. My offer to settle was a letter from my lawyer and a time to respond by - does this constitute a formal offer to settle that I can use to claim costs at motion?

    As always, opinions are appreciated.

  • #2
    Originally posted by Dee1973 View Post
    Won't get into too much background but facts are essentially this:
    1. After 14 months still living in the house together
    2. She sent a lawyer letter proposing settlement and sale of the home, relevant highlights included:
    - she wants $142K from the sale of the home to pay off a home equity line of credit against a rental property we own in her name. She is claiming that it is a debt of the matrimonial home because the withdrawals from this line of credit were made to pay down our principle residence. Which is true over the last 4 years I took money from there, but also money from my bonuses, my investment accounts, my sale of a rental property, all payments came from my bank account. She provided copies of cheques from the line of credit being paid to me with memo saying for home mortgage as proof the rental line of credit is a debt of the matrimonial home. I have documentation showing the line of credit is secured against the rental condo and all mortgage payments come from my bank account.
    3. I sent a very short letter with my offer to sell the house with a week deadline to respond otherwise I go to motion.

    My questions are:
    1. How best to refute her claim (which she will also claim at motion) that the rental condo line of credit should be paid from the proceeds of the sale of the matrimonial home?

    2. My offer to settle was a letter from my lawyer and a time to respond by - does this constitute a formal offer to settle that I can use to claim costs at motion?

    As always, opinions are appreciated.
    It's hard to say what would happen.

    My application to the court asks for an order to sell the house and then all "Joint" debts to be paid in full from the proceeds. The rest is to be held in an interest bearing trust account pending further agreement or order.

    This debt would really depend on how it appears on your NFP.

    It sounds like a joint debt from the information you have provided, but again I don't have enough info and would be seeking legal advice.

    Do you have a lawyer?

    I feel for you I'm on month 21 of my in home separation. My motion to sell the home is scheduled for May 8th.

    Comment


    • #3
      Thanks for the response FB.

      1. The line of credit debt appears on her FB since it's only in her name (not joint) - I'm sure she will want it paid from the proceeds and of course I would want it dealt with as part of equilization. Your right hard to say what would happen. I guess it's really on timing because she not asking for an unequal division of assets - only that it be paid first and not part of the equilization.


      2. Yes I have a lawyer - he indicates that it will be very difficult for her to win this argument as it was not as though the debt was run up recklessly. Just over 4 years various means were used to pay down principle mortgage.

      3. OMG!!! 21 months!! God it's me that feels for you!!

      Comment


      • #4
        So I guess my other question is - my offer to settle was a letter from my lawyer and a time to respond by - does this constitute a formal offer to settle that I can use to claim costs at motion?

        Comment


        • #5
          Originally posted by Dee1973 View Post
          So I guess my other question is - my offer to settle was a letter from my lawyer and a time to respond by - does this constitute a formal offer to settle that I can use to claim costs at motion?
          No.

          It must be signed by you and your lawyer. Mine was served on a specific form... Not sure which one. It just says "Offer to Settle"

          It also cannot expire before the date of the motion or other court hearing.

          Most offers state the following

          This offer to settle remains open for acceptance until one minute after the commencement of an interim motion, unless withdrawn in advance in writing
          Here are the rules re: offers to settle.

          Rule 18

          Courts of Justice Act - O. Reg. 114/99


          DEFINITION

          18. (1) In this rule,
          “offer” means an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter-offer. O. Reg. 114/99, r. 18 (1).
          APPLICATION

          (2) This rule applies to an offer made at any time, even before the case is started. O. Reg. 114/99, r. 18 (2).
          MAKING AN OFFER

          (3) A party may serve an offer on any other party. O. Reg. 114/99, r. 18 (3).
          OFFER TO BE SIGNED BY PARTY AND LAWYER

          (4) An offer shall be signed personally by the party making it and also by the party’s lawyer, if any. O. Reg. 114/99, r. 18 (4).
          WITHDRAWING AN OFFER

          (5) A party who made an offer may withdraw it by serving a notice of withdrawal, at any time before the offer is accepted. O. Reg. 114/99, r. 18 (5).
          TIME-LIMITED OFFER

          (6) An offer that is not accepted within the time set out in the offer is considered to have been withdrawn. O. Reg. 114/99, r. 18 (6).
          OFFER EXPIRES WHEN COURT BEGINS TO GIVE DECISION

          (7) An offer may not be accepted after the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (7).
          CONFIDENTIALITY OF OFFER

          (8) The terms of an offer,
          (a) shall not be mentioned in any document filed in the continuing record; and
          (b) shall not be mentioned to the judge hearing the claim dealt with in the offer, until the judge has dealt with all the issues in dispute except costs. O. Reg. 114/99, r. 18 (8).
          ACCEPTING AN OFFER

          (9) The only valid way of accepting an offer is by serving an acceptance on the party who made the offer, at any time before,
          (a) the offer is withdrawn; or
          (b) the court begins to give a decision that disposes of a claim dealt with in the offer. O. Reg. 114/99, r. 18 (9).
          OFFER REMAINS OPEN DESPITE REJECTION OR COUNTER-OFFER

          (10) A party may accept an offer in accordance with subrule (9) even if the party has previously rejected the offer or made a counter-offer. O. Reg. 114/99, r. 18 (10).
          COSTS NOT DEALT WITH IN OFFER

          (11) If an accepted offer does not deal with costs, either party is entitled to ask the court for costs. O. Reg. 114/99, r. 18 (11).
          COURT APPROVAL, OFFER INVOLVING SPECIAL PARTY

          (12) A special party may make, withdraw and accept an offer, but another party’s acceptance of a special party’s offer and a special party’s acceptance of another party’s offer are not binding on the special party until the court approves. O. Reg. 114/99, r. 18 (12).
          FAILURE TO CARRY OUT TERMS OF ACCEPTED OFFER

          (13) If a party to an accepted offer does not carry out the terms of the offer, the other party may,
          (a) make a motion to turn the parts of the offer within the court’s jurisdiction into an order; or
          (b) continue the case as if the offer had never been accepted. O. Reg. 114/99, r. 18 (13).
          COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

          (14) A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:
          1. If the offer relates to a motion, it is made at least one day before the motion date.
          2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
          3. The offer does not expire and is not withdrawn before the hearing starts.
          4. The offer is not accepted.
          5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer. O. Reg. 114/99, r. 18 (14).
          COSTS CONSEQUENCES — BURDEN OF PROOF

          (15) The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule (14). O. Reg. 114/99, r. 18 (15).
          COSTS — DISCRETION OF COURT

          (16) When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule (14) does not apply. O. Reg. 114/99, r. 18 (16).

          Comment


          • #6
            Originally posted by Dee1973 View Post
            Thanks for the response FB.

            1. The line of credit debt appears on her FB since it's only in her name (not joint) - I'm sure she will want it paid from the proceeds and of course I would want it dealt with as part of equilization. Your right hard to say what would happen. I guess it's really on timing because she not asking for an unequal division of assets - only that it be paid first and not part of the equilization.


            2. Yes I have a lawyer - he indicates that it will be very difficult for her to win this argument as it was not as though the debt was run up recklessly. Just over 4 years various means were used to pay down principle mortgage.

            3. OMG!!! 21 months!! God it's me that feels for you!!
            It would be best to probably fight that it would come from her share of the proceeds of the house not yours as well.

            Comment


            • #7
              Thank you again FB - I sent you a separate message. You can ignore the offer part as above makes it pretty clear!

              Comment


              • #8
                If you do not have a lawyer, then how can you make an offer to settle? I imagine you would not need a lawyer's signature at that point...

                Comment


                • #9
                  If you do not have a lawyer, then how can you make an offer to settle?
                  To be signed by the party and their lawyer, if any; if not then not.

                  Comment

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