Considered a Matrimonial Home

[newone2010]

During the short time of our marriage, my ex's assets increased due to her pension (teacher) and RRSP's. My assets increased only due to some property I own. Everything else has been split. Our matrimonial home has been sold and the proceeds went towards our joint line of credit. There is an outstanding line of credit that I just want us to split, such that we can go our separate ways.
However, she is saying no to the split, and that she wants half of the total value of my land. Apparently (how true, I do not know), a lawyer told her that my land could be considered part of the matrimonial home because we went there.

The land is all forest, with no buildings on it. My grandfather bought it in 1987. The only people to ever use it was my friends and I. We camp there on long weekends since 1993. In 2000, my grandfather gifted it to me (on his death bed). Personally, I think it should be completely exempt from consideration because of the family law act clause which says something about it not being intended for consideration of net asset - as it was gifted to me so that my friends and I could continue camping.

Has anybody heard of something like this? Is there any chance it could ever be considered part of the matrimonial home?

I am going to find a lawyer in a couple days, but just wanted to know if there were some 'professional' thoughts here first to (hopefully) ease my mind.

Thank you.

[dadtotheend]

Cottages are commonly considered to be matrimonial homes in addition to the house in the city.

Of course a lawyer is going to tell her that the land could be considered to be a matrimonial home. The lawyer wants to create conflict to divide and conquer the two of you to create some billable hours.

I bet it will be quite a burden for your ex to demonstrate why vacant land s/b be considered a matrimonial home. I would call her bluff and tell her that you disagree and will gladly let a judge give you his/her view. Meanwhile I would be searching case law on this issue.

How many times did you and your spouse go camping there?

[blinkandimgone]

In order for it to be considered a matrimonial home you would have had t actually live in it. Obviously that is not the case if there is no building. Inheritance is also not included in equalization.

[HammerDad]

Did a lawyer prepare a deed of gift from your grandfather to you? If so, look at the deed of gift to see if it precludes the land from forming part of the matrimonial property.

You may also be confusing matrimonial home with matrimonial property. The land, if not previously provided that it didn't form part of any matrimonial property AND if not otherwise mixed in with matrimonial finances (like loans taken out against it for payment towards matrimonial items or used as collateral for other mortgages that would be included as matrimonial property), it would most likely be considered as a matrimonial asset and she would be entitled to any growth of the asset during the term of the marriage.

So your argument would hinge on you believing that your grandfather didn't want it to become a matrimonial asset and you have not mixed it in with any matrimonial property, therefore it should be excluded from the matrimonial property.

There may be other ways of getting around it, depending on whether or not she spent a night up there camping, but a family law or estates lawyer would be better suited to answer that.

[newone2010]

She has been camping with us since 2003. Two or three times a year.

On the transfer from my grandfather to me, it states something to the effect of 'for love and affection' so it doesnt say anything directly about it not being for net asset. However, I figure that I could get my grandmother to write some type of letter.
If that fails, I do understand that she would be entitled to half of the increase in value, but she is thinking about going for half the total value.

I also understand that a lawyer will say stuff like that to create billable hours. Kinda silly for the small amount we are arguing over, but whatcha gonna do?

As always, thank you all so much for your input. It is truly appreciated.

[HammerDad]

"For Natural Love and Affection" is the standard intro into any deed of gift. The clause you are looking for would look like this:

The Land shall be the private and separate property of the Grantee and shall not fall into or form part of any community of property, partnership assets, family assets or net family property or be subject to any other matrimonial rights of his spouse or consort and such Land shall not be liable to satisfy any obligations to such spouse, consort or community under the Family Law Act (Ontario) or any other such similar legislation

This is obviously one lawyers version, but you would be looking for something similar.

IMO, stop listening to what you ex says her lawyer is going to go after. Wait until you are served with a notice to have it included as matrimonial property. You ex and her lawyer are a bad place to get your legal advice from.

Another matter to the equation is whether or not your grandmother was also on the deed to the land and whether or not she transfered her portion to you as part of the gift. If she didn't what rights do you have to her half as in survivorship, joint tenants, tenants in common etc. It may be your grandmother is still on title and didn't sign a deed of gift to you. So in effect, your grandfather only transferred you half of the title to the land, meaning she may get a 1/4 of any increase in value.

If you are unsuccessful arguing that she is not entitled to the land as it was inheritance etc. you have to argue that she is only entitled to increase in value during the time of marriage and that any other amount would be unjust enrichment.

[dadtotheend]

I don't think it's required that the deed stipulate that the land be excluded from division of property. The simple fact that you acquired it as an inheritance excludes it altogether including increases in value.

A camping trip 2 or 3 times a year? On vacant undeveloped land? She's up a tree. I wouldn't worry about it.

[HammerDad]

I don't think it's required that the deed stipulate that the land be excluded from division of property. The simple fact that you acquired it as an inheritance excludes it altogether including increases in value.

Unfortunately, the way he describes the transfer means it wasn't technically inheritance (from my perspective at least). He was gifted the land in lieu of inheritance. Had it been transferred after death and gone through probate, then it would be inheritance. You don't inherit something when the person is still alive.

It was probably done this way to avoid paying probate and taxes on it. But it leaves the door open for it to be interpreted as marital property.

A camping trip 2 or 3 times a year? On vacant undeveloped land? She's up a tree. I wouldn't worry about it.

It is an asset, one that from my reading wasn't specifically precluded from being marital property and will most likely be dragged into the equation. It is just how much and for how long.

[ottawaal]

Was it gifted before you were with your wife? If so its yours imho.