How Can I Recover Down Payment on House?

[Teenwolf]

In determining loan vs gift, the judge will likely apply the following principles:

1. Whether there were any contemporaneous documents evidencing a loan.
2. Whether the manner for repayment is specified.
3. Whether there is security held for the loan.
4. Whether there advances to one child and not others or advance of unequal amounts to various children.
5. Whether there has been any demand for payment before the separation of the parties.
6. Whether there has been any partial repayment.
7. Whether there was any expectation, or likelihood of repayment.

If it's determined to be a gift, then the ex will likely get some of the value in the home. It won't be due to a matrimonial home; it will be due to the fact that her name is on the deed.

[ddol1]

but to the subject at hand in my case it is a marriage and we do own the home and this is from way at the biggining.........

Say over the yeras the mat home is bought and sold 5 times and over the years some of the what would otherwise be excluded disability funds made it into the house - concede these funds are now 50/500 just like the house 50/50/ this house is now worth 300K. 5 years ago this house was sold for the purpose of downsizing - from 300 to say 200K feeing up $100,000 out of the mat home. Say for arguements sake the last 70K put into the mat home out of desperation of loosing the house for non ability to pay the mortgage - 70K paid it off.

So say 4 months pass after paying off the expensive house and it is sold, and we move to a new town, get a much smaller home and free up the 100k, freed up the last 70k that would have been the excluded funds. what arguement can there be for the 100k cash removed from the mat home some 6 or 7 years before the date of seperation. any have comments on the validity of the disability funds being once again returned to the excluded savings account right after the sale of the bigger home and is left there divided from the regular bill payment joint account funds.

So to be clear, is there any arguement to the funds now used for only a short period of time, the matramonial home sold a nd downsixed 7 years before date of seperatioin - funds placed in the seperated account once again (this account was the long term retirement savings account (we could only put a limited amount into the rrsp due to lack of income - CPP disability is already below basic tax window where i do not pay income tax). So in effect the money was borrowed short term to save the first house (could no longer cover the mortgage with me on cpp and her on limited regular employment income which was really low - and she wasn't doing anything to increase it when i got "sickk". in the end this is why the house got sold and we moved from that city........ can i now reclaim those funds under the excluded treatment (these funds were from my disability payments and later my mom inheritance money - again being saved for retirement as i was not going to have a work pension, only a partiall GPP retirement pension of 40% of what most people will get from the government.

anybody heard of an argument like this?? Everything i come across is the mat home is sold at the date or after the date of seperation - the usual story.... never downsizing years earlier.

[billiechic]

Eleven years loan and no demand for payment? Equally arguable that it was a gift.

I doubt it. Maybe if it was for a couple of grand, but $100,000? Right, pocket change to the brother of a guy who cant afford a lawyer. (no offense intended)

[beebie]

I love this:
"She has not contributed to the family expenses except for very short working periods mostly part time."
Except that she was the unpaid slave.


Eleven years loan and no demand for payment? Equally arguable that it was a gift.

[ddol1]

point taken that was my oversite - but at least it brought it up for discussion! ;-)

I have beeen in super overload - trying to make headway on my stuff for wed and i know it is a uphill war. I have things done but I have the fear in me big time..... doesn't help getting kicked out of the house on "police trumped up " but for me I am in a warm spot and the ex isn't chasing me down or sscreaming at me (or at least I can't hear her! but this is costing money, money i do not have more than shorter term.

again thanks for the quick correct - shame to send someone off on a tangent.

[Teenwolf]

Yes, constructive trust can be applied, but there's no guarantee that it will equate to the same 50/50 division, as would occur under a matrimonial home. In order for a constructive trust to be imposed, unjust enrichment must be proven, and the amount awarded will be equal to the contribution deemed appropriate by the court.

In Jackson v. Jackson (1989), 97 A.R. 153 (C.A.), the husband’s mother gifted to the husband $60,000. The money was used as the down payment on a jointly-owned matrimonial home. The Court upheld the decision of the trial judge, concluding that the husband had gifted half of the funds to his wife, making that half of the original gift from his father divisible as matrimonial property.

The case you put forward deals with a married couple with a matrimonial home. Of course she would get half; any property he owns is automatically 50% hers.

Here's case law regarding loan vs. gift: http://www.canlii.org/eliisa/highlig...nlii25185.html

Item 30: For a gift to occur, there must be evidence of the intention of the donor to make a gift and then acts that are necessary to give effect to the intention.

The Op can go to court with the written loan agreement he has with his brother. He can also get his brother to testify in court that it's a loan. In her retort, what evidence can she provide to the court to indicate that it was a gift? I think she'll be up shit creek without a paddle.

[beebie]

Right that was matrimonial property law but are you totally sure that law of constructive trust won't result in same division?

Also here is the case quote from an Alberta case. Wife got one quarter of gift. Alberta matrimonial property law allows exemptions from property division and not sure if Ontario law also does or if house is just divided slam dunk :

In Jackson v. Jackson (1989), 97 A.R. 153 (C.A.), the husband’s mother gifted to the husband $60,000. The money was used as the down payment on a jointly-owned matrimonial home. The Court upheld the decision of the trial judge, concluding that the husband had gifted half of the funds to his wife, making that half of the original gift from his father divisible as matrimonial property.

[Teenwolf]

Try searching "matrimonial property" and "gifted". Hope I am not misinforming you.

Once again, matrimonial applies to people that were married. They were CL. Check out this case law: http://www.canlii.org/eliisa/highlig...011nssc34.html

They were CL and had a house jointly owned. However, the guy put 20K towards it from a previous solely owned property. In item 76 the judge states "Although the Applicant originally sought an unequal division of the net equity in his favour to take into account the $20,000.00 equity that was transferred from the house that he owned in 2003 to the house in Ottawa and eventually to the house in Cole Harbour, he is now satisfied that he has received that money back through the refinancing of the mortgage which took place in 2009."

This leads me to believe that the judge may have awarded him a 20K unequal division of the net equity, had the applicant not conceded to getting that money back. This whole "matrimonial home" thing doesn't apply because they were CL.

Also note that "net equity" was the factor. There is no equity in the Op's home because the money is still owed. He has a loan for 100k with his brother. The other 50k is factored into his inheritance. A CL partner doesn't get 50% of your inheritance. He may have a snag though, if he deposited that 100k or 50k into a joint account.

[beebie]

You may allege a loan agreement but did you ever make a payment? If not, might be interpreted as gift.

Or maybe your loan was due on sale of house?

I think your ex may be referring to situation where exempt monies are deposited into joint account or used for down payment and thereby half is gifted to other party.

Try searching "matrimonial property" and "gifted". Hope I am not misinforming you.

[Teenwolf]

now that it is called an inheritance - you chose to put it into the matramonial home. Once you did that your ex then again has the right to demand 50% of the equity in the home as per standard family law. You need to make real sure you close that obvious loophole that any bad lawyer would be able to create in thier sleep(in other words it is too easy to get this done and you are out of 75K and you will not have much of a defense - non actually)

Careful with using the term matrimonial home. They were not married. They were CL, and the only reason why she has any stake in the house is due to her name on the deed.

You may have a valid point, but you appear to be applying matrimony law here. In NS, your argument is covered under the Matrimonial Property Act, which doesn't apply to CL.

[ddol1]

lorlaman - hate to throw a monkey wrench in but..... you have what might be termed a loan from your parents - documented in the will and DEDUCTED if not repaid. There may be an easy case for someone to get that loan redefined as actually an early inheritance which would then not be a loan.

now that it is called an inheritance - you chose to put it into the matramonial home. Once you did that your ex then again has the right to demand 50% of the equity in the home as per standard family law. You need to make real sure you close that obvious loophole that any bad lawyer would be able to create in thier sleep(in other words it is too easy to get this done and you are out of 75K and you will not have much of a defense - non actually)

[standing on the sidelines]

sounds like you have a case then!!

[Teenwolf]

Okay then...you have documentation for both. You have a loan agreement with your brother for 100K and 50K is tied into your inheritance, which is written in a will. Show her copies of these docs. If she still persists that it's a gift, then you'll end up in court. I believe the docs will dismiss her application.

[lorlaman]

Hi SOTS
There is a agreement between my brother and I which provided the loan to be interest free. The principal is demanded back.

There was no loan agreement written with my parents only verbal. My dad passed away and cannot speak for himself, however, my mother is still with us and able to testify. Further, the loan made to me is clearly identified in my parent's will written 6 years ago and deducts the loan amount from the inheritance I am to receive since repayment was not made.

[standing on the sidelines]

was there a loan agreement written up with your brother and your parents at the time they gave you the money?? Can you show where some repayments have been made??