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How to response to Motion to force sale home?

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  • How to response to Motion to force sale home?

    Hi All,
    Please advise if anyone has experience on how to response for motion of force sale home?
    I have to self representing as can not afford a lawyer and not qualified for Legal Aid.

    Bio:
    -have 3 kids- 2 stays at university and come back home in summer; one is U17 still say with me
    -my ex still live in the house and retained a lawyer
    - I file for divorce as applicant on 201611 and she responded.
    -No case conference yet
    -Have gone trough mediation but broke down on pay out and now she retain a lawyer

  • #2
    Originally posted by joe19 View Post
    Hi All,
    Please advise if anyone has experience on how to response for motion of force sale home?
    I have to self representing as can not afford a lawyer and not qualified for Legal Aid.

    Bio:
    -have 3 kids- 2 stays at university and come back home in summer; one is U17 still say with me
    -my ex still live in the house and retained a lawyer
    - I file for divorce as applicant on 201611 and she responded.
    -No case conference yet
    -Have gone trough mediation but broke down on pay out and now she retain a lawyer
    Doesn't seem the kids would be effected by it. Is there any equalization payment issue outstanding ? Are you seeking exclusive possession of the home? Why are you opposing the sale? See case below.

    Although there is clear jurisdiction under the Partition Act to order the sale of the parties' matrimonial home I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act issues (particularly the determination of the equalization payment),
    should not be made as a matter of course. See Binkley v. Binkley (1988), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be
    taken into account.
    source: https://www.canlii.org/en/on/onsc/do...&resultIndex=1
    Last edited by trinton; 05-11-2017, 11:59 AM.

    Comment


    • #3
      House in both names and mortgage is 240K
      i have been trying to buy her out and offered her since 2015.
      Variance of $40,000
      CS of $1050 and SS of $120
      asking my MZ 2012 car under my company name not matrimonial
      MY ex asking for current market price
      please advise
      Thanks

      Comment


      • #4
        Originally posted by joe19 View Post
        i have been trying to buy her out and offered her
        MY ex asking for current market price
        Are you trying to offer less than market price?

        If so, and she refuses, then you have no legal remedy. Offer her market price or sell the house.

        Comment


        • #5
          Interesting case law Trinton. In my case the sale of the marital home was forced before trial. I could not buy out my ex's share as I had to come up with 100% of the value of the home including my share! Then this money was to be held in trust as ex said I was not entitled to any money after a long term marriage. I did come up with the $ via a private broker but the interest rate was astronomical so I said no.
          End result was that the kids and I were homeless for a period of time living out of my vehicle! None of the kids will forgive him for this ( I didn't tell them he did this, they figured it out).

          Now that trial is upon us, it turns out he owed me the home paid for and more, yet I was forced to sell it and the kids made homeless!
          Lawyer told me I can't get the house back but we are asking for real estate fees back.

          A case like mine is a prime example why the house shouldn't be forced to be sold until trial or a settlement agreement has been reached!

          Comment


          • #6
            During mediation, offered her market price
            but there us a price jump in my area
            now she wants bee market price
            should it be at seperation value?

            Comment


            • #7
              Originally posted by joe19 View Post
              During mediation, offered her market price
              but there us a price jump in my area
              now she wants bee market price
              should it be at seperation value?
              If you owned the house yourself, then the value of the house would be the value at the separation date.

              In this case, however, you both own the house, so you both get to gain from the increase in value.

              Different situations. I'm assuming that yours is the latter, which means that it is reasonable for her to ask for the current market rate.

              Comment


              • #8
                Janus is correct. Exact same thing happened to me.

                I paid her out as quickly as I could (half the value - minus half the debt). Glad I did. Real estate went up massively since then. Recovered all my money paid out.

                GTA house pricing went up 6 % one month. Tax free. Good luck

                Comment


                • #9
                  Originally posted by North of 40 View Post
                  Janus is correct. Exact same thing happened to me.

                  I paid her out as quickly as I could (half the value - minus half the debt). Glad I did. Real estate went up massively since then. Recovered all my money paid out.

                  GTA house pricing went up 6 % one month. Tax free. Good luck


                  ?????????????????
                  You only had to pay 1/2 the debit and 1/2 the equity????????


                  What the ...., is going on in family law? I was told I had to pay for 100% of both the debt and equity! I could easily have come up with that .
                  In my case I had to come up with it all and the money would be held in trust .
                  Can't believe there are two sets of laws even in family court.
                  You must be mistaken.

                  Comment


                  • #10
                    Originally posted by Stillbreathing View Post
                    ?????????????????

                    You only had to pay 1/2 the debit and 1/2 the equity????????





                    What the ...., is going on in family law? I was told I had to pay for 100% of both the debt and equity! I could easily have come up with that .

                    In my case I had to come up with it all and the money would be held in trust .

                    Can't believe there are two sets of laws even in family court.

                    You must be mistaken.


                    I think you are talking about the same thing... the ex was responsible for half the debt on the house and he really only had to pay her half the equity... remortgaging would take care of the debt and payout. There are not two sets of rules... it's simple math. That being said, you are both entitled to fair market value so offer fair market value in a proper offer to settle.

                    House was worth $200k
                    Mortgage is $100k

                    Ex gets $100k equity
                    OP gets $100k equity

                    They are each responsible for $50k of the debt, thus the payout to the ex is only $50k not $100k so half the equity and half the debt.

                    If you are saying you have to come up with all of it are you saying your ex wants to full $100k equity on the house rather than just their 50% share?


                    Sent from my iPhone using Tapatalk

                    Comment


                    • #11
                      Yes my ex wanted 100% of the equity and more. His initial offer was that he take all the money, all the equity, I have custody of the children, I pay him child and spousal support. This would leave him with 2.5 million and me with nothing. In addition out of my nothing left he wanted me to pay him 300,000! All after a long term marriage. He is brain damaged . The judges did not understand the bigger picture of what he was asking for when they forced the sale of the home. Now that my new lawyer does, he says we can't get the house back but we can ask my ex to compensate me for my 1/2 of the real estate fees as the matter with the house was handled improperly.

                      The forced sale of the home is going to bite him in the behind come trial plus the fact it resulted in the kids and I being homeless has already affected even more with his relationship with the kids.

                      Comment


                      • #12
                        1/2 the real estate fees will amount to little.
                        You mean to say that you cannot get 50% of the proceeds of sale of home? Were proceeds not put into a trust account pending end of trial?

                        Comment


                        • #13
                          1/2 the real estate fees is 17,000.00. Money has been in trust for several years now. I will be getting 100% of the proceeds in addition to six figure additional settlement amount. A good chunk of which will go to lawyers fees at trial.

                          Comment

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