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stalemate-how to proceed

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  • stalemate-how to proceed

    I don't know where to go from here. My ex is asking for the whole house, and about 75% of our assets. I am asking for a 50% division of our assets.

    We had a jcc a few months ago and her lawyer did all the talking, my ex didn't say a word. I am self repping and i tried to at least get a consent order for the things we agreed to in principle. i was shut down at every turn.

    The only thing they wanted was for a 5 day trial to be set, because they figure "she" is going to need "at least" three days to present her side. the master also stated that she was not going to order us to mediation because our sides were too far apart, and that it wasn't a good place to start any kind of mediation. her words were that mediation would be inappropriate in this case.

    in any case, im pretty low income and i can't afford mediation anyways. i was hoping to be able to negotiate a settlement by email.

    fast forward a month, and i suddenly get an email from the lawyer stating that they wanted to know if i would be willing to mediate, and they suggested a mediator who is a feminist, and works with abused women, and also is an arbitrator. i was uncomfortable with that and smelled a rat, because she falsely obtained a protection order against me. this mediator would have been clearly been biased against me, and they would have tried to trap me into an arbitration.

    i sent them an email back restating my position saying that after a ten yr relationship 50% is fair, and that based on what the master said at our jcc i was inclined to agree that mediation would not be appropriate. i invited them to carefully consider my email, and to instruct her client on the ramifications of purgery and contempt of court, because of her false allegations. i recieved nothing back.

    I sent another email yesterday expressing my willingness and desire to settle this case, and they sent one back today stating that she too desires to settle the case, but that they will not be accepting any offer showing a 50% division of assets.

    we have no children. i don't know where to go from here. i want to file an application under the partition act to force the sale of the house, but im unsure how to proceed. there are other assets too that need to be decided. an application as i understand it is for temporary orders, but i am asking for a final decision on the house, and i also want to include the vehicle and rv we also own. im not sure whats appropriate. also im not sure how to word it. all in all in one application i would be asking for compensatory ss, the vehicle, and rv. and finally for the house to be divided.

    i really feel like were at a stalemate and the only option to move forward is an application (im in bc) but im just not sure where to go from here. i could really use some advice. thanks in advance.

  • #2
    Write them back that you would consider their offer if they can produce a detailed report on relevent legislation and case law that supports over 50% distribution of family assets.

    Further state that if they cannot produce such support now, you do not believe they could produce such support in the courtroom.

    State that you are willing to come to a settlement in their favour if they can show factually that there is both evidence and case law to support their claim. This would save both sides costs.

    If they cannot show such support, then you have no reason to avoid trial.


    • #3
      they are claiming the house is excluded from division because her parents paid the down payment and considered it an early inheritance. she has documentation showing this, but she put that money into our family asset, i am on both title and mortgage. once that money was put into the house, it became family property and no longer excluded from division. I too received a sizable inheritance that i invested into the family home.

      my previous posts cover what i have put into the house, and what she has contributed. coming to a settlement in their favour shows her keeping the entire house, no ss for me and i walk away with the truck and rv, both of which are in her name only, but that i have contributed to significantly. I would be walking away with about 15% of our assets.

      the case law is an interesting thought, I haven't tried that yet, i have been all over can lii and have not found anything to support their case.

      I don't want trial, i am hoping to negotiate thins out of court, i don't have a lawyer and can't afford one. i will go to trial only if she pushes it.

      Getting back to my application question, do i go for the whole thing in it, or just move to have the house divided?

      They hounded me for the paper work of the masters orders so that they could submit it to the court, and they have, but they haven't gotten a trial date yet, and although a list of documents from both sides have been exchanged, they haven't asked to see mine, i suspect its because she doesn't want her lawyer to see them, they contain very damning evidence in respects to her alleged medical condition.

      any thoughts anybody? i really need some advice. and thank you mess for responding


      • #4
        I believe your wife's legal team is throwing you some hocus pocus.

        In order for the home to be considered and "early inheritance" or gift the parents would have had to have taken some legal steps to ensure their daughter's interest in the house was secured in the event of divorce or your death. I believe she would have had to have had a legal document agreement drawn up where you waived your dower rights. This would have required you to take the document to a lawyer to receive independent legal advice (ILA). You should read up on that area of the law to ensure you have the correct information as I am certainly no expert. [In the event you were common law, the dowager thing may not be relevant in your province - good to check this out].

        Your ex wanting to have a lawyer as mediator who is a feminist is of little relevance but the fact that they put that in their written correspondence to you suggests they are merely trying to intimate to you and that they intend to use your previous charge of domestic violence against you. I don't believe it would be relevant when determining equalization of marital assets.

        Where does her "alleged medical condition" come into play? Is she trying to get SS on top of 75% of the matrimonial assets?
        Last edited by arabian; 12-11-2013, 10:41 AM.


        • #5
          I do believe the courthouse usually has a number of nediators available to choose from. You could simply agree to attend mediation arranged with one of their mediators.

          If they are serious about mediating, it won't matter to them WHAT mediator you use and they wont be dead set on using that particular one.


          • #6
            Ask them for a sworn financial statement. The inheritance will show as a deduction. You then ask for proof of the deduction. If you look under the annotated matrimonial property books there is a section if I remember correctly regarding inheritances.

            While your at it ask them for proof for all items they have entered into the NFP.

            For the matrimonial home the parents would have had to sign a declaration that the monies given was to be excluded from your ex's NFP.

            Find that section and a couple of case laws, and rudely bring it to her lawyers attention.

            They're trying to white wash you.

            You do need to check your emotions at the door in order to evaluate whether the inheritance deduction is reasonable and fair with regards to settlement.


            • #7
              You also mentioned that you received a sizeable inheritance and put it into the home. Perhaps you could negotiate division of assets taking BOTH inheritances into consideration?


              • #8
                Even if they paid the downpayment - that in NO way logically or ethically results in the house being excluded from the patrimony.... You can maybe reimburse her for the downpayment + increase in value on it (which I think would be too generous but meh...)


                • #9
                  Originally posted by arabian View Post
                  You also mentioned that you received a sizeable inheritance and put it into the home. Perhaps you could negotiate division of assets taking BOTH inheritances into consideration?
                  I believe this would then fall under unequal division of assets if say the contribution to the home was 65/35 split. You would then have to consider contributions during the marriage to it's upkeep/repair. The onus in court would be upon the person claiming the unequal division.

                  The easiest and most fair route would be deduction of inheritances by both, and then division of remaining equity 50/50 after remaining mortgage deduction. Of course other debt between the two might also come into play, as well as pensions, etc. The OP does not clarify the entire NFP situation.


                  • #10
                    "In order for the home to be considered and "early inheritance" or gift the parents would have had to have taken some legal steps to ensure their daughter's interest in the house was secured in the event of divorce or your death."

                    The only thing her parents did is to write a letter saying the money for the house was considered to be an early estate payout. there is no mention in the letter about what would happen if we split. I signed no legal document at any time.

                    If you look back at my previous post, you'll see how she has tried to make this very confusing. I stated her alleged medical condition because, i took care of her for 7 yrs, during which time she was almost bed ridden.

                    When i broke up with her, within a 2 week time frame, she was suddenly walking without a cane, driving, and hiking. She kept begging me to give her another chance. (at one point she even said but im better now, why are you still leaving me when im better?) it was only when we broke up that she somehow magically got also led to me getting suspicious.

                    we lived in our home together for another 3 monthes after we broke up, with her having no relapses just her getting stronger and stronger. when it became clear to her we would not be getting back together, i found out she was planning on accusing me of domestic violence, i got the hell out of there.

                    even without me there, three monthes later she got a restraining order against me, and exclusive occupancy. I haven't been able to access the property for many months now. I have never been charged with any dv, there is no evidence. only her stories.

                    I have to do something! i'm just not sure what. the longer she is in the house, does that affect division? i haven't been paying the mortgage, i'm renting somewhere else. Meanwhile, i own a house i have invested lots of time and labor to, and I'm not allowed near it. she enjoys all the fruits of my labors. im trying to avoid trial, i want to settle out of court. but they reject everything i send them. shes not willing to talk unless i give her the whole house (and i mean give, she refuses to buy me out). what will get this case moving? i really need some help! will an application help? or is there something else i can try? I am going to email the lawyer again using the content Mess suggested above. I don't know if It will help, but I know after all I've looked through on canlii there doesn't seem to be any case law backing her up, when we both own the home and both contributed to it equally in different ways.


                    • #11
                      Some CanLII cases you may or may not have come across:

                      Kerr v. Baranow, 2011 SCC10, [2011] S.C.R 269
                      S.M.P. v. M.E.K. 2013 BCSC 145
                      Bressette v. Henderson 2013 BCSC 1661
                      Pittendreigh v. Durocher 2013 BCSC 707
                      R.Y.D. v. D.W.W. 2013 BCSC 472

                      I believe the last one goes into quite a bit of detail about "gifts" from parents. There may or may not be some relevance to your situation. I don't know anything about common law but currently find it quite interesting.
                      Last edited by arabian; 12-12-2013, 10:14 AM.


                      • #12
                        Simply file a motion asking for the house to be sold.

                        Ask that all proceeds from the sale be held in trust until such time that other issues are resolved. You could also say that 10% would be released to each of you and the rest held in trust.

                        I found in my case the do nothing approach worked best. She wanted a whole bunch of things. I sent 5 offers to settle all with 50/50 division of property as well as access. She rejected them. I scheduled a motion to have the house sold. She settled 5 days before the motion.

                        The law is on your side. Put their feet in the fire.

                        Have you sent an "official" offer to settle yet?


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