Advice needed regarding Equity in matriamonial home

[samantha1970]

Ive been reading posts for a couple of days, trying to glean information from everyone's posts and figure out what to do and how to do it for my court case on July 26.
I'm a little apprehensive putting anything in writing as it seems that most of the men on the site are getting the hammer from their exsp.
Background:
My ex left 4.5 years ago, told me he didn't want to be married on Friday and was moved into his g/f house on monday. He signed an agreement with me and 2 witnesses, that I would keep the house and he would pay me half the mortgage payments until I got my first commission cheque the following month, he would keep his RRSP's (pretty equal equity in both), he would pay for half of the 40,000 debt that we accumulated together during our marriage.
He gave me one payment towards the debt, closed the bank accounts-took out all the money in the joint accounts.
During our marriage he decided he needed to be a soldier and left work for 3 months, as I had just been laid off, I cashed in my RRSP's to pay for the bills during his 3 month leave.
He brought in a debt of 30k to marriage, which I paid half.
He needed to buy the best FORD F150 out there, so I co-signed on the truck.
He didn't pay his child support, and at that time, I was receiving support, he was 2500.00 behind in payments, so I took my support and paid his CS debt.
I know I didn't make very good decisions financially.......
The month that he left, I had no income as I had just switched careers and was starting out on a commission based career, thankfully, my church helped pay my mortgage that month.
Fast forward 4 years: I cashed in the remainder of my RRSP's when sales were slow, kept up the payments on all the joint debt, paid for everything in the house because I eventually wanted to have his name removed off the mortgage and title.
4 years and 40,000 towards lawyers fees, final result, I did my best to keep my credit rating at the point where I could consolidate my half of the debt into the mortgage and ex to removed from the mortgage.
The last two years, every six months the mortage automatically renews as he will not sign the mortgage agreement to get the best interest rate with the bank.
He finally agrees to sign the house to me after dragging this all out for four years, he agreed to transfer 11k of RRSP on the condition that I suck up all the 40k debt he left me with (I had been paying minimum payment and interest, about 20k interest, for 4 years hoping he was going to step up and pay his half)
Unfortunately my credit rating tanked in the previous 6 months. When I went to remortgage I was unable to.
So, to protect my interest in the house, I filed a consumer proposal, which means all the debt that I was carrying for the past 4 years, that he jointly signed, has now moved to his name only. (CP I pay 700 a month for the next five years to pay what I owed jointly with the ex).
I can hear you......j/k.
Ten days ago I received a court application and he is requesting that he receive vacant possession, or we sell the house so he can now pay for the debt that has now reverted to his name only, he is claiming that I have been unjustly enriched ( does he have to proove this, or do I?), or a constructive trust.
My finances are shot, I dont have 5000 for retainer for a lawyer, I'm trying to put all the paperwork together and hope that I keep my house.
In the consumer proposal papers the trustee said " the ex has not transferred his interest in the house, it appears to the administrator that the ex would have a constructive trust in the home for 50% which the the estimated realizable value is 22,000.
I found a supreme court case that stated the following: the spouse that retained the MH was told by the courts to pay the ex 44k, he filed bankruptcy and the court ruled that the equalization payment was part of the creditor list and he was no longer required by law to pay the 44k to his ex.
I dont believe he has a case for unjust enrichment, any thoughts?
The house was appraised at 220,000 by an indepdent appraiser of his choosing, less Real estate fees 11,000, lawyers fees 4,500, less liens on the house of 15,000, less mortgage outstanding 150,000 leaves 39,500, divided by 2 is 20,000. My credit is ruined until I pay off my CP debt in five years, I have no RRSPS remaining and no cash to buy him out.
Has anyone ever heard of owing your ex in the future when I can pay him, or pay by installments? The other part of the equation, is the fact that he was suppose to transfer 11k of RRSP's to my name. Would I be able to take that 11,000 from the 20,000 and only owe him 9,000 to be paid in installments?
I would appreciate any help.
Thanks,

[arabian]

From your post I gather your ex is untrustworthy and doesn't honor arrangements you have made in the past with him. Time to cut the strings. Sell the house. [IN MY OPINION]

[Mess]

In order to help you we need the answers to the following questions:

Your approximate debt load coming into the marriage:

Your approximate assets/savings/investments coming into the marriage:

His appx. debt coming in: ($30k?)

His appx. assets coming in:

(If you were young when you married, these may be near zero, that's fine, we need to have a ballpark figure.)

The $40k debt accumulated during marriage, I take it that has nothing to do with the mortgage on the house, this is in addition?

He accumulated RRSP of (how much?) during the marriage? (We need value on separation date.)

You accumulated RRSP of (how much?) during the marriage? (We need value on separation date.) (You state you cashed in RRSP after separation, this is irrelavent.)

What is the value of the truck, your vehicle (if any) at the date of separation? Are there any other physical assets of note? (Smaller items would still be of value but let's do a ballpark analysis here.)

Here is a basic answer: Assuming that you each have a vehicle and they are of comparable value, let's cancel them out, and I'll assume there is nothing of major value that puts either of you ahead of the other.

The issue seems to be the house, the RRSPs, and the debt.

The value of the house should be split 50/50 as of separation date. (More on what the trustee said later...)

The debt should be split 50/50, especially as it was in joint name. He really can't argue this.

Any money you paid out toward debt or buying items during the marriage is completely irrelavent, let it go, it is complicating your story and doesn't change the accounting.

It appears he ended the marriage with more savings (RRSPs) than you. It is critical to know how much.

Since separation you have been paying the mortgage, taxes, and insurance (skip utilities, those are your personal expense now) and covering all maintainence, repairs, and upkeep on the house. While he was co-owner, he was not maintaining the value of the property, you were, in both finance and labour.

At the same time, you had a place to live; your ex had to provide himself housing somehow. You had the benefit of the house, even though you were joint owners. This cancels some of the value of your mortgage payments; essentially you owe him rent for the last years since separation, he still was part owner of the house.

In most cases it's not worth fighting over rent vs. mortgage payments and who lived in the house. It might end up that he owes you a bit or you owe him a bit. It is simpler to just split the value NOW at 50/50. He is still co-owner of the property, his interest in the investment hasn't changed.

As far as unjust enrichment, this is a joke, you paid the mortgage and maintained the property; unjust enrichment works the opposite way, if he paid the mortgage and did the maintainence while you lived there. There is, from my reading, no possibility of a constructive trust when you are both co-owners of the property and did not invest any labour or extra capital; this would be unique in family law dealing with the marital home. I have no idea what the trustee's background is, but I doubt he is an experienced divorce lawyer.

You owe him $20k for his share of the house; as far as I can see that is the end of it. The question is what was the value of your RRSP at date of separation compared to his? You have to subtract what you had THE DATE YOU SPLIT UP, NOT NOW from what he had; then you can split the difference. Is that difference $11k?

You are pay your own debt over the next years, still carrying the mortgage and other costs on the house, have no savings, and minimal equity in the home. Are you seriously able to cover all your bills? How would you handle a major repair, a broken furnace, a leaking roof? What would you do if your car broke down?

You might have to consider selling the house and renting. You would pay off your debt to him and have the rest to pay off your own debt and have a fresh start.

[samantha1970]

His assets before the marriage RRSP value 15,000
His debt into the marriage 30,000
My assets before the marriage RRSP locked in 10,000

His RRSP accumulation during marriage (at my encourage he maxed his contributions because his employer matched dollar for dollar) 40,000
My RRSp accumulation during the marriage 10,000

His truck value (which he sold) at separation would have been 14,000
My car at separation would have been 5,500

Yes, the 40,000 was joint debt accumulated during our marriage.

I have to represent myself in court, on Thursday, I'm going to bring forward everything I can item by item to the best of my ability and let the courts decide.

I know what you are saying about repairs and maintainance with regards to the house and with my car. That has crossed my mind several times as I hope all remains the same, until I can get ahead.

We listed him as a creditor on the CP, should he have not come to the creditors meeting to voice his opinion and/or state that he did not agree with the CP?

I appreciate your help.

[samantha1970]

I'm hanging onto my house because its been my home for ten years and its my safety net. I dont wont to give up without trying every available angle. I want to be prepared on July 26 when I go in front of the judge, and hope for the best and prepare for the worst.

[Mess]

Samantha assets: Marital home $20k, RRSP $10k, car $5.5k

Total: $35.5k

Jackass assets: Marital home $20k, RRSP $40k, truck $15k

Total: $75k

Marital debt: $40k

Samantha $35.5 - $20k (share of marital debt) = $15k
Jackass $75k - $20k = $55k.

By my reading, he owes you $20K in equalization, assuming he takes on half the debt. If he has other ideas he has to explain exactly why and back it up with bank statements.

I would strongly suggest you write down what I wrote here, and if the judge doesn't notice this at the case conference, then you put up your hand and politely ask if you can explain the equalization as you understand it.

[samantha1970]

thanks very much