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  • Need advice

    <o:smarttagtype namespaceuri="urn:schemas-microsoft-com<img src=" images="" smilies="" redface.gif="" border="0" alt="" title="Embarrassment" smilieid="2" class="inlineimg"></o:smarttagtype> I have decided to separate from my wife but she doesn’t want to cooperate.
    I need your advice on what to do.


    Here is our situation.
    <o></o>
    We got married in 1992 in <st1:country-region w:st="on"><st1>Armenia</st1></st1:country-region>. Since July 2002 we live in <st1:state w:st="on"><st1>Ontario</st1></st1:state>
    We have 2 daughters: 16 and 15 years old.
    We own two properties: a townhouse where we live together with a kids and a condo apartment where my mother-in-law lives. Both properties are joint ownership of both of us and we pay mortgages from our joint bank account.
    <o>
    </o> We live in the same house but I moved to basement so we actually were separated since May 2009.
    <o>
    </o>Living in the basement is not very comfortable and I suggested to my wife split our properties as following:
    <o></o>
    I agree to move into condo apartment and assume mortgage and all household expenses associated with that condo. She will assume mortgage and all household expenses for the townhouse.
    <o></o>
    I agree to pay reasonable amount as child support but I don’t want to pay any spousal support. My wife has a well paid job and earns more money than me.
    <o></o>
    All furniture, electronics, household items, etc I am willing to leave to my wife.
    All I need it’s a place to live.
    <o></o>
    I have communicated this to my wife but she said that she don’t want to get divorced and will not sign any agreement.
    <o></o>
    What steps should I take to get my freedom? Do I need lawyer? Should I wait until our separation is 1 year old and go to court?
    <o></o>
    Any input will be greatly appreciated.

  • #2
    Is there any way you can prove May 2009 if she contests it? If not, here's what I would recommend.

    1. File forms with CCRA (RC65 - Marital Status Change)... note you have to be separated > 90 days before you can do this. This sets the separation date with CCRA and gives you a leg to stand on if she kicks up a stink about it.

    2. IF you are agreeable to the arrangements you have made, as is your wife...then go ahead and make the necessary arrangements to move and split the assets as you have indicated. (Make sure you get the titles to the properties switched as you've indicated) (Basically get HER name off the condo, and yours off the house)

    WARNING: IF you do this, you'll forfeit any future claim against those assets. (Well technically you can fight for them, but you'd very likely lose) I'm assuming this isn't an issue.

    3. Access to the children...how will it be split? Try to make sure you establish status quo of at least 3 days/week. Otherwise start paying her table amount of CS starting the month you moving out of the home.

    4. Split your bank accounts ASAP. No more joint stuff. Joint = bad, she can use the presence of them to contest the date of separation if she wants to be miserable about things. Clear any joint debts, or make arrangements to have them transferred into either JUST your name, or JUST your wife's name.

    5. Once that is done, I'd wait 2-3 months (to establish status quo for CS/access/etc) then go and pick up the documents for a "simple divorce" from your local courthouse. (Cost is something like $125 to file the forms once you complete them, usually costs a couple $$$ to pick them up too). Once the forms are completed and files, you'll have to serve her with them....She gets the choice to contest, ignore or agree.

    IF she contests it, she has to give reason. (and since you've already dealt with division of assets/debts AND access/support, AND have an established status quo in place respective to those items by following steps 1-4...there's nothing for her to use to contest it, she can try, but she'd lose).

    IF she ignores it (she can basically sit on it for like 6 months if she wants to), you can go to the courthouse and have the clerk sign off on it. 30 days later...done deal.

    Comment


    • #3
      The CRA requires that you be living apart and separate, in others not under the same roof for three months. You can't just be sleeping in separate rooms. You have to be living in separate homes.

      You're basically going to have to move out if you can't get her agreement. A very perilously thing to do as Mom may not facilitate access to the kids.

      I would try to set up an access schedule that splits the time with the children, meaning that (because the Mom makes more money than Dad), she would owe him CS. That will be very difficult to do if you leave the house without the kids.

      Unfortunately, you are in a very tough position. You should definitely see a lawyer for advice BEFORE moving out of the home.

      Comment


      • #4
        Actually NBDad is correct about the CRA. It explains clearly (although in some obscure, hard to find information page) that you must a) have clearly communicated to your spouse that you are separating and b) that are sleeping in separate rooms. You can be in the same house.

        When we separated I was sleeping in the basement and my wife on the third floor. I filed the RC65 90 days after we sat and wrote out a parenting plan. We separated in June, lived together but apart through the summer, and then I moved into a new apartment in late Aug with my daughter helping me paint and set up.

        The CRA fully accepted the June date of separation, even though I was clear with them that I was officially changing addresses on Sept 1, and they started splitting the Child Tax Credit between my ex and me that month. In fact, they hit my ex with an overpayment notice and she called me up really pissed, but in the end she was SOL.

        When I met with my lawyer a couple of months later I clearly explained the timeline, the June date was considered the V-date and there has never been any contest about that with the courts or with CRA.

        For me, the period from June to Sept was also crucial for access purposes, during that time I picked the children up from school/daycare/camp each afternoon and cared for them 4 hours each day until my ex got home after 6pm. I explained to both kids what was going to happen and what our living arrangements were going to be, so everyone was confirmed about the shared access schedule. When we set up the apartment, my daughter's room was painted and set up identical to her old room with all of her furniture, and I set up brilliant play spaces for my 3 year old son.

        When my lawyer heard this process she praised me up and down for handling it perfectly and protecting my access. It was kind of accidental, although if I'd researched it I would have done exactly the same thing for legal reasons, I had thought it through from the standpoint of easing the transition for my kids as much as possible.

        Comment


        • #5
          Thank you very much for your input.

          NBDad,
          Although your advice is sounds like a good plan I still have some concerns about how to split the assets, like removing her name from the title without her agreement. Is filed RC65 enough ground to deal with mortgage companies and banks?

          Comment


          • #6
            Being a tax accountant, I have seen several cases where the CRA has not accepted a separation date for CTB purposes until the spouses are living at different addresses.

            My guess Mess, is that you were accepted because you moved out a short time after the June stated separation date. In the cases where I have seen the CRA not accept the stated date, the CTB would have increased significantly due to one spouse's income being considered and the taxpayer was behind in filing so the waters were quite a bit muddied.

            Comment


            • #7
              dadtotheend,

              I respect your opinion and understand that in some cases CRA might not accept a separation date. But CTB is not applicable in my case.
              Also I dont have intent to rent a separate apartment because I own (jointly) 2 properties and to prevent costs and hassle of selling them and splitting profits and debts I want to give the much higher value house to my wife and kids and keep to myself the other one. Just the fact that her mother lives in that apartment prevent me from moving in. I don't want to fight with her. She lives there for 2 years and have furnished the apartment on her own expense.

              All I need to know if there is a legal grounds to change the title of the property

              Comment


              • #8
                I think you will need your wife's consent. I doubt you can remove her name from the condo without her permission.

                You need to really negotiate here and make it worth it for her to sign off on the condo and take full ownership of the house. where will her mother move? Has she been paying rent? This needs to be considered as well as she will be upset if her mother is put out by this. If you try to put yourself in her shoes it might help you put together a plan she will agree with.

                Comment

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