Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law > Common Law Issues

Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

Reply
 
Thread Tools
  #1  
Old 12-22-2013, 07:30 AM
Just&Fair Just&Fair is offline
Member
 
Join Date: Jul 2012
Posts: 38
Just&Fair is on a distinguished road
Question Is this unjust?

Hi everyone,

I would like your to hear your opinion/advice on my current situation.

Here's some background stuff:

1. Purchased a home with the EX. Both of our names on the title, both of our names on the mortgage.

2. To simplify things, price of the home is $330,000, I've put a deposit of $30,000. Ex did not put a dime.

3. Except for half of the fence, I've paid everything related to the home. Paid for all utilities and property taxes. All were paid from my bank account.

4. Ten months after moving into the new home, Ex runs away with my kid without me knowing. A month later, on advice of my former lawyer, I agree to pay the mortgage and other expenses while the home is up for sale. At that time, EX says she wants none of the equity in the home, which was the deposit only.

5. EX then makes a court application, seeking order for partition and sale of the house and the equal sharing of the net proceeds.

6. My former counsel responded by seeking that my contribution to the downpayment be excluded, basically making a claim for unjust enrichment, resulting trust, constructive trust and all that good stuff.

NOTE: EX had a property (under her name only), which she sold for a profit and that we lived-in for two years just before moving to the new home. Ex denied that I contributed to the expenses of the property, basically saying that I lived there rent free. I claimed that I've contributed cash amount (harder to trail), but I've also was able to provide cheques showing my contribution.

FAST FORWARD TO TODAY:

1. The home is still valued at about $330,000 (conditions of the market);
2. I've reduced the mortgage of about $15,000, so the balance is $285,000;
3. Both of our names still on the title and the mortgage;
4. I still pay everything related to the home and obviously take care of maintenance and upkeep, while she doesn't show any interest with matters of the house;
5. House is not on the market yet.

Her lawyer is arguing that I have Exclusive Possession of the home. The only reason I stayed is out of necessity. It was more stable for my kid while we were fighting for custody and if she won't resume her payments towards the mortgage, it would be hard for me to pay the entire mortgage and rent somewhere.

At the same time, if I'm reducing the mortgage by myself and she's entitled to half of the equity, I don't know why I should be staying in the home. Seems like a catch 22.

According to legal counsels, it appears that I have a good case for Trust Claim. Still, I may be headed for trial and I'm self-representing now, so I'm doing my readings and I decided to turn to the board for opinion/advice on the matter.

Not seeking anything legal, but your two cents. Anything to build-up confidence while I'm headed for what will hopefully be the last stretch on this case.

I apologize for the long post.

Last edited by Just&Fair; 12-22-2013 at 07:31 AM. Reason: typo
Reply With Quote
  #2  
Old 12-22-2013, 08:05 AM
Mess Mess is offline
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

You are common law and this is not a marital property. (You obviously know that, but just clarifying for the casual reader.)

You are both on the title, and so are joint owners. If the property had increased in value, she would thus own 1/2 of the percentage of increase. It is important that you include this in your argument, so as to point out what her legal entitlement would be. She is entitled to something that did not occur.

The joint ownership of the property was a partnership, and you invested virtually all *(except half the fence?) of the money put into the property.

She may claim 10 months of sweat labour. You two argue how much, I wasn't there. I would offer her $5000 (=$500 per month) to shut her up and save legal fees.

You should retain the amount you put in. However you have received economic benefit of living there while she did not. She is half owner. It doesn't matter if you were "forced" by circumstances until the place is sold. You lived there, you owe her rent: half of the fair market rent for the number of months you lived there.

My opinion is to take the amount you put in, less her sweat labour, less occupational rent. Explain in a businesslike manner that there is no legal basis for her to claim 50%, and in the interests of reducing legal fees, you suggest she accept your offer.

I wouldn't bring up the previous property. I realize your ethical position, but you have no real claim to that and it is irrelevant and will only increase conflict, not reduce it.
Reply With Quote
  #3  
Old 12-22-2013, 08:15 AM
arabian's Avatar
arabian arabian is offline
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 10,694
arabian will become famous soon enough
Default

Quote:
Originally Posted by Just&Fair View Post

3. Except for half of the fence, I've paid everything related to the home. Paid for all utilities and property taxes. All were paid from my bank account.


...if she won't resume her payments towards the mortgage, it would be hard for me to pay the entire mortgage and rent somewhere.
These two statements seem to contradict. So your ex did indeed make mortgage payments?
Reply With Quote
  #4  
Old 12-22-2013, 08:42 AM
Lava Lava is offline
Member
 
Join Date: Aug 2012
Posts: 43
Lava is on a distinguished road
Default

I think he means that other than the mortgage he paid for all the expenses.
Reply With Quote
  #5  
Old 12-22-2013, 09:35 AM
Just&Fair Just&Fair is offline
Member
 
Join Date: Jul 2012
Posts: 38
Just&Fair is on a distinguished road
Default

@Arabian: Sorry for the contradiction. Me ex made mortgage payments for 9 of the 10 months. Her only other contribution to the home was to pay for half of the fence.

Utilities, taxes, cleaning, lawn care, snow removal, follow-up with the builder (new built), purchased of hardware and other products at hardware store... all me.

They haven't claimed occupational rent, but that is always a possibility. Basically, I would owe her fair market value minus her half of the mortgage. In other words, let's say fair market value is $1000 for rent and her half of the mortgage is $700, I would owe her $300 for every months that I lived in the home.

Now that custody has been settled, I would move out of the house, but until she confirms that she will resume her mortgage payments, I can't rent a place and pay the entire mortgage.

We have a settlement conference next month. Offer to settle have been exchanged and we're not too far apart when it comes to the house. Basically, she wants to use a real estate agent for the sale, which I'm against. My legal debt has increased with all of her non-sense and an agent would snap a big chunk of the money that I've put in.

My EX has made a mountain out of this case. The custody fight was a joke and this is another circus. In reality, she doesn't want any proceeds from the home. She just uses it to obtain some concessions, which is how the game is played, I guess...
Reply With Quote
  #6  
Old 12-22-2013, 10:47 AM
Mess Mess is offline
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

You each own half the house. If you were renting it for $1000 per month, you would each get $500.

IMHO you are looking at mortgage payments the wrong way. Sell the house eventually, and pay off the remaining mortgage and any legal fees. Any taxes you have paid, any insurance, and the additional mortgage payments you have made should be added to your share. Any occupational rent - this is fair and ethical regardless of whether they have brought it up or not - goes on her side. You then split the remaining proceeds accordingly.

Don't get into subtracting mortgage from occupational rent, that is bad accounting. Do it properly. Preferably do a proper schedule in a spreadsheet.
Reply With Quote
  #7  
Old 12-22-2013, 11:28 AM
Mess Mess is offline
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default Quick spreadsheet

Here is a quick spreadsheet example. If you input the proper amounts for mortgage, taxes, etc. the other fields should update. Just watch her net contribution, where it is red, it is assumed to be $0 in the final fields.

Assuming you lived there 1 year after breakup.

Edit: Changed mortgage payments to show you paid double mortgage after she stopped paying.

The net result is she owes you money.
Reply With Quote
  #8  
Old 12-22-2013, 12:08 PM
Rioe's Avatar
Rioe Rioe is offline
Senior Member
 
Join Date: May 2010
Location: Ontario
Posts: 3,348
Rioe will become famous soon enough
Default

Quote:
Originally Posted by Just&Fair View Post
They haven't claimed occupational rent, but that is always a possibility. Basically, I would owe her fair market value minus her half of the mortgage. In other words, let's say fair market value is $1000 for rent and her half of the mortgage is $700, I would owe her $300 for every months that I lived in the home.
Not quite right.

Monthly market value rent is $1000.
Mortgage per month is $1400 (good thing this isn't an income property!)

If you would owe her $500 in rent (you are half owner) and she should pay $700 towards the mortgage but isn't doing so, the end result is that she owes YOU $200 a month. This keeps accumulating the longer it drags on.

Or were you implying that the fair market rent is $2000 and you had already divided it in half?

Anyways, her interest in the house ended when she stopped paying the mortgage. So that's the valuation date you should use. What benefit is derived from you paying down the mortgage further after that should be all yours.

Point out to her that the house did not increase much in value during the less than a year that she lived there, that any increase in value after she left is offset by the mortgage she ought to have been paying but wasn't and getting worse every month, offer her a few thousand to avoid court, and hopefully she'll take it.
Reply With Quote
  #9  
Old 12-22-2013, 01:02 PM
Just&Fair Just&Fair is offline
Member
 
Join Date: Jul 2012
Posts: 38
Just&Fair is on a distinguished road
Default

@Rioe: Mortgage is actually $1400 per month. The way my former lawyer explained it to me is that rent tend to be higher than half of the mortgage (depending of the mortgage of course). So if the market for rent is estimated at $1000 per month, I would have to subtract her half of the mortgage payments ($700), since I'm the one paying for her half, which means I would owe her $300 for every month spent in the home post-separation.

Now, I was also told that judges usually don't like to deal with occupational rent in certain cases. I haven't made a claim that she repays her half of the mortgage, so unless she sees a financial benefit to it, I don't think occupation rent will be an issue. All that being said, occupational rent is not the main concern at this time.

If I could open a channel of communication with my EX about those issues, I would. She refuses to discuss court matters. The way I see it, she will lose more money by going to trial than to let me sell the house at my conditions. For those who remember, you're talking about the EX who was asking for child support from the date that she left with my kid and who was allowing me 42hrs in two weeks with my child when daycare get about 90hrs. Needless to say that I'm dealing with her personal issues and anxiety as opposed to someone who can see reason. Even the health card required the Case Conference to finally travel with the kid.

Trust Claims seems to have some legs. Legal advice says that Resulting Trust seems like the most probable argument. This has already been prepared by my previous lawyer, so I just have to follow the game plane at this point. Either way, if she wants to push this further and further, I have no choice but to follow.
Reply With Quote
  #10  
Old 12-22-2013, 01:18 PM
Mess Mess is offline
Senior Member
 
Join Date: Aug 2009
Location: Toronto
Posts: 5,448
Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough
Default

Just use the spreadsheet, or give us the actual values and I redo it. Your lawyer is confusing things beyond belief. Trust claims aside, you have a business partnership in the ownership of the house, it is not family law.

The fixed ratio is 50% regardless of investment unless you have a contract to the contrary.

Additional mortgage payments by you increase your equity; they do not affect the "rent" and this should all be calculated separately, and then totaled.

Again, look at the spreadsheet and it will make more sense.
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
Unjust enrichment - which court? -clean hands? Strider22 Common Law Issues 4 06-09-2012 07:18 PM
Unjust Enrichment sadandrippedoff Financial Issues 6 10-29-2011 02:06 AM
Ontario Property Rights and Unjust Enrichment justafool Common Law Issues 4 09-17-2009 03:57 PM
Child Support Arrears & Unjust Enrichment??? MaggieT Financial Issues 3 08-11-2009 05:29 PM
Unjust enrichment / spousal support claim?? mom22galz Common Law Issues 14 06-20-2006 08:36 PM


All times are GMT -4. The time now is 03:03 PM.