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  • #16
    Quote:
    Therefore the value should not be included in her NFP from before marriage. So neither of your assets at the time of marriage should include any of the value of this home.
    OrleansLawyer - This is not correct. While the home was a matrimonial home, because it was sold (or otherwise disposed of) prior to separation, the value of the home on the marriage date may be included as marriage date assets.
    Case law - CanLII - 1999 CanLII 787 (ON CA)

    I debated this going to a new thread - or more so being very similar to what is being discussed in the OP's circumstance - I left here to add to this thread - I hope this was right:

    I am sorry but this has me real baffled, read this limnk several times.....not a good day but if understood, this really is significant..... In simple terms:

    If the MH at the date of marriage is sold (which otherwise would meet the exception in that the value of the MH shall allways be divided 50/50) but is this correct??? A MH on the date of marriage which would otherwise fall under the rules for a MH, no longer meets the condition, of the MH, and thus the rules that apply to MHs, once it was sold during the marriage? The proceeds from the sale of this first home became the property of the husband as he was the 100% owner and finally, 100% of the value goes to the husband at least on his net family property calculations?

    So my question is: The home which this couple bought together prior to, but was owned on the date of marriage, is the MH and as such, then split 50/50 as to the value of this home on the date of marriage regardless of who paid what of the downpayment and later of the mortgage to pay it off. If this is understood, when the house which was the MH on the date of marriage would be sold during the marriage - the cash proceeds no longer hold the special treatment that the MH offers?

    This has been brought up softly in the past, What if the proceeds from the first home was used to buy a second then a third all increasing in value but this third house was sold for (Say $500,000), for the purpose of downsizing, the final home was then purchased for $300,000. How would the remaining $200,000 be treated? Would it loose the MH status thus allowing the return of funds as verbally agreed prior to using the money from which would have otherwise been excluded money (arising from a lump sum payment as a result of my accident/injury years earlier) to pay off the mortgage, eliminate the high interest rates and aside form the ex now developing admesia to (not only this but every single financial detail of our 25 year marriage), this agreement we had before hand, which was to return the money to my retirement savings when either the house was sold and downsized or through increased income which never occurred.

    The money trail is really clear from the disability money which was to go to my retiirement savings (as had each bulk non-income payment came my way as a result of my accident/disability over the last twenty years - went to fund my retirement) but now went to the final mortgage - temporarily as agreed before the money transfer. A year later the house was sold and downsized and she returned the money to my seperated retirement savings account and in fact she put the entire sale proceeds into my seperate account. Is there any claim to the return of at least the amount of our original agreement?

    Is this what the posted CANLII link implies as far as how the teatment of the MH is concerned, how it was bought, sold, re-invested in the next home which would then become the new MH and finally should it be sold - the final home that was occuppied becomes the actual MH at seperation?

    Comment


    • #17
      To quote paragraphs 21-23 from the decision, with some emphasis,

      [21] In this case, at the time of separation the Maurice Street
      property was not ordinarily occupied by the parties as their
      family residence. The fact that it had at one time prior to
      separation been so occupied is not enough to bring it within the
      legislative definition of matrimonial home.
      [emphasis added by OL]

      [22] I can find no policy basis to support the opposite
      conclusion for the Maurice Street property. The policy
      imperative of the legislation is clear: in calculating net family
      property a matrimonial home is to be treated differently from
      other property owned at the date of the marriage.

      [23] To exclude from this exception a property which was a
      matrimonial home at the date of marriage but ceased to be at the
      time of separation is no less defensible than to include such a
      property as a matrimonial home but exclude from net family
      property the funds brought into the marriage by one spouse which
      were thereafter used to buy it.
      [Emphasis added by OL] Either could be attacked for creating anomalous and unfair results inconsistent with the
      fundamental objective of the legislation. Or each could be
      defended as in some measure achieving the objective of treating a
      matrimonial home differently in the net family property
      calculation. Hence there is no policy victory achieved by
      including the Maurice Street property within the definition of
      matrimonial home in calculating net family property.
      OrleansLawyer - This is not correct. While the home was a matrimonial home
      To contradict myself (or, more politely, to clarify):
      The property, had the parties separated while they occupied it, would have been a matrimonial home. On the facts, they did not. It was disposed of prior to the separation. It is, therefore, an asset like any other. Whether that asset is property, investments or herds of chickens is held to be immaterial.

      Comment


      • #18
        I don't believe the case cited is entirely analogous to the OP's situation.

        If Betty owned a home worth 100k on date of marriage and the couple lived in the same home until divorce, this value would be excluded from her marriage date NFP.

        If the home was sold and another home bought for 100k (nothing gained or lost) then according to your reasoning, the original home would now not be considered the marital home, and the value would be included in her NFP.

        In the second case, nothing really changed except their address. They consistantly lived in one marital home worth 100k. Because they moved, suddenly Betty has a marriage date NFP that is 100k larger. This in turn drastically changes the equalization.

        I do not believe this scenario is supported.

        Comment


        • #19
          If Betty owned a home worth 100k on date of marriage and the couple lived in the same home until divorce, this value would be excluded from her marriage date NFP.

          If the home was sold and another home bought for 100k (nothing gained or lost) then according to your reasoning, the original home would now not be considered the marital home, and the value would be included in her NFP.

          In the second case, nothing really changed except their address. They consistantly lived in one marital home worth 100k. Because they moved, suddenly Betty has a marriage date NFP that is 100k larger. This in turn drastically changes the equalization.
          With respect, I believe this situation is exactly what is discussed in the case. If Betty and Bob move next door then Betty's marriage date claim makes a jump.

          Comment


          • #20
            Originally posted by OrleansLawyer View Post
            With respect, I believe this situation is exactly what is discussed in the case. If Betty and Bob move next door then Betty's marriage date claim makes a jump.
            I agree. The jurisprudence provided could be applied to this matter at hand. There is other jurisprudence (case law) which could be raised in support of the argument as well that come from different angles that may be appropriate as well.

            Comment


            • #21
              Mess, I think you worded the intent quite well, I remember some time ago we discussed this issue with the as you state, "a matter of course the MH which was upgraded with each new move thus increasing the value of the MH at seperation to whatever its value at seperation just the address changed". But what if one of those moves was to downgrade the size and value so as to pull out the equity before seperation that was not used to purchase the next MH.

              OraleansLawyer and if I understand Tayken are concluding at least back to the date of marriage what the posted rulings are stating - that when the MH is soldthe house at that point ceases to be a MH and and that goes to the proceeds - Once any of the proceeds are then used to purchase a home that ultimately is deemed a MH at the date of seperation then MH rules apply - but there is no mention to the left over cash that was not flipped into the next MH......

              This I have continued to search for some definative support that would allow or show a ruling on what is now the leftover cash? It doesn't meet the definition of a MH and is not to the original OP circumstance perhaps this issue here should now be in a different thread??

              My lawyer has swayed on this issue but it comes down to what we can prove, case law and how much wieght "to the probablity of the truth by the evidence presented. OrleansLawyer has brought up some case law that, was very interesting at least to what I was able to comprehend.

              Comment


              • #22
                The ratio from the case is that there is* only one matrimonial home, which is determined on the separation date. "Former matrimonial homes" are to be treated as other properties - such as former vehicles or former RRSPs.

                Therefore, the value of a property that the married couple previously resided may be included as part of their marriage date assets.

                Chasing the money into the (separation date) matrimonial home is relevant to excluded property, for example an inheritance.

                * - unless there isn't.

                Comment


                • #23
                  If A ≠ B, then B ≠ A.

                  Let A = cash money brought into the marriage by party a.
                  Let B = Physical residence brought into the marriage by party b.

                  23] To exclude from this exception a property which was a matrimonial home at the date of marriage but ceased to be at the time of separation is no less defensible than to include such a property as a matrimonial home but exclude from net family property the funds brought into the marriage by one spouse which were thereafter used to buy it. Either could be attacked for creating anomalous and unfair results inconsistent with the fundamental objective of the legislation.

                  The home and the funds brought into a marriage are either the same, or they are different, according to intent of legislation. The justice in this case seems to wish them to be both.
                  If a home is brought into the marriage and remains the marital home, the justice feels that exclusion of this value from marital NFP is consistant with the fundamental objective of the legislation.
                  If a home is brought into the marriage and is sold, the justice feels that exclusion of this value from marital NFP is inconsistant with the fundamental objective of the legislation.
                  Since inherited funds or funds from insurance settlements may be excluded if tracable, the concept of exclusion of funds from the sale of pre-marriage home is not problematic. The disposition of funds may be traced, or not. If not, then the same rule would apply as to funds from an inheritance.
                  The justice in this case is making an argument, although they may not realize it, that the value of a marital home should be excluded from marital NFP regardless of whether it is sold or remains the principle residence throughout the marriage.
                  The fundamental objective of the legislation is to treat the value of the marital home differently than other assets, otherwise the entire section of the FLA would not be necessary. The value that is brought into the marriage by the owner of home which becomes the marital home is treated differently according to legislation. The questions would be, why is this, what is the intent, and why should this intent disappear just because the home is sold?

                  Comment


                  • #24
                    If a home is brought into the marriage and remains the marital home, the justice feels that exclusion of this value from marital NFP is consistant with the fundamental objective of the legislation.
                    If a home is brought into the marriage and is sold, the justice feels that exclusion of this value from marital NFP is inconsistant with the fundamental objective of the legislation.
                    The justice is narrowing the breadth of the matrimonial home asset exclusion.

                    The questions would be, why is this, what is the intent, and why should this intent disappear just because the home is sold?
                    Why:
                    When the legislation was drafted, a number of lobbyist groups had the ear of the provincial government. A major concern was the feminization of poverty, particularly through divorce. It was not uncommon for the matrimonial home to be the only substantial asset of a couple and, upon separation, if the home had been an inheritance or otherwise paid for prior to the marriage (usually by the husband), he would remain in the home and otherwise be able to maintain his standard of living while his (now ex) wife would be forced into poverty.

                    Intent:
                    The sharing of the value of the matrimonial home was intended to protect against the feminization of poverty through divorce. Furthermore, in a vein similar to the constructive trust developed by the supreme court, it gives value to the years a (traditional) wife may spend in her (traditional husband's) home.

                    Why should this intent disappear:
                    There are people who argue that the treatment of the matrimonial home in equalization is utterly inequitable, that it may lead to a windfall from one party to another - particularly given that it tends to be short term marriages that remain in the same home - and is generally a clumsy attempt at managing a broad social issue that has, in any event, produced no noticeable impact.

                    The narrow reading of legislation has come to mean that the equalization effect of the matrimonial home is either on excluded funds obtained during the marriage or on homes that were owned on the marriage date.

                    Comment

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