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"Common Law" Division of Property Issue in Ontario

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  • "Common Law" Division of Property Issue in Ontario

    Good Day Everyone,

    Just need a bit of clarification please, and advice. A bit of a background.

    My CL and I have recently split, and we jointly own a house (deed, mortgage, etc...). We dated for 1 yr long distance, then bought the house and have been in it for a little less than 2 yrs. I put the entire down payment in for the financing of the property. Nothing but minor expenses have been invested in the property since the purchase by either of us. We have split 50/50 all expenses for the house (bills, mortgage payments, etc...) since the purchase.

    I am looking to get back my down payment and then split all remaining equity 50/50 should she not accept my buyout offer and we are forced to sell. She is looking for 50/50 split of total equity based on (appraisal - approximate fees - mortgage owing) what we could get.

    From my understanding, since we have not been in a cohabitating relationship for over 3 years (long distance wouldn't be counted as cohabitation with regards to this as we were freshly dating), then common law does not apply, therefore this is more Property Law or some kind of Civil Law as opposed to Family Law. After sale, all fees are paid, then my down payment comes to back to me and the remainder (if there is anything left) is split 50/50 because we are both co-owners. Am I right on this?

    I'm also under the assumption, that we leave with what we came into the relationship with. Again, my down payment was my investment into the property, and therefore should be returned prior to splitting any remaining equity. Am I right on this one too?

    My understanding that her perceived "entitlement" to half the total equity would constitute a gross situation of unjust enrichment.

    The down payment was from the proceeds of a previous property that I was the sole owner of. I also have all the documentation to show this and that it was transferred from the sold property to the newly purchased one.

    We are currently in the beginnings of the lawyer phase of this, and I'm hoping it doesn't need to go any further. If anyone has any advice or points to think about, please let me know.


  • #2
    Oh, I forgot, there are no kids or anything. Just pets, but that's not any issue for us. So this is a strict property issue without any curve balls.


    • #3
      I am thinking you are right.
      Last edited by standing on the sidelines; 08-09-2016, 03:13 PM.


      • #4
        Thank you for your input. From what I'm gathering, this does seem to be the case, otherwise it's an unjust enrichment claim.

        Needed other people's opinions just to make sure I wasn't missing something.


        • #5
          I think you're on the right track. If you haven't signed I don't even think you'd be considered "married" for her to claim anything...


          • #6
            The cohabitation has been less than 2 years (3 years min in Ontario), so I am good that way. It should be a cut and dry...he invested x to finance the property, she invested y ($0) to finance the property. He gets x back after expenses are dished out, then the remainder gets split. There were also no renovations done to the property, so that's an easy one.


            • #7
              Well, cut and dry does not mean perfectly fair. What if the value of the property dropped for some reason? Would you still expect to get back the full x?


              • #8
                Not at all. Up to my down-payment (x)...the remainder if any would up split. I would not expect my ex to dish out from her pocket to make the difference. I doubt a court would even consider something like that is totally unfair and wouldn't be part of the equity anyhow. We would probably get a maximum of what what we paid for the house from the comparisons I wouldn't get my full down payment back...but I do want this calculation...

                Sale price
                - fees and such
                - down payment (back to me...up to the total I put down)
                = remaining equity split 50/50

                This seems fair and equitable to me. Otherwise I see unjust enrichment because other than paying her half of the mortgage and utilities, there was no other financial contribution by my ex.


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