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

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  #21  
Old 01-07-2012, 03:02 AM
Teenwolf Teenwolf is offline
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Yes, constructive trust can be applied, but there's no guarantee that it will equate to the same 50/50 division, as would occur under a matrimonial home. In order for a constructive trust to be imposed, unjust enrichment must be proven, and the amount awarded will be equal to the contribution deemed appropriate by the court.

Quote:
In Jackson v. Jackson (1989), 97 A.R. 153 (C.A.), the husband’s mother gifted to the husband $60,000. The money was used as the down payment on a jointly-owned matrimonial home. The Court upheld the decision of the trial judge, concluding that the husband had gifted half of the funds to his wife, making that half of the original gift from his father divisible as matrimonial property.
The case you put forward deals with a married couple with a matrimonial home. Of course she would get half; any property he owns is automatically 50% hers.

Here's case law regarding loan vs. gift: http://www.canlii.org/eliisa/highlig...nlii25185.html

Item 30: For a gift to occur, there must be evidence of the intention of the donor to make a gift and then acts that are necessary to give effect to the intention.

The Op can go to court with the written loan agreement he has with his brother. He can also get his brother to testify in court that it's a loan. In her retort, what evidence can she provide to the court to indicate that it was a gift? I think she'll be up shit creek without a paddle.

Last edited by Teenwolf; 01-07-2012 at 03:47 AM.
  #22  
Old 01-08-2012, 12:39 AM
ddol1 ddol1 is offline
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point taken that was my oversite - but at least it brought it up for discussion! ;-)

I have beeen in super overload - trying to make headway on my stuff for wed and i know it is a uphill war. I have things done but I have the fear in me big time..... doesn't help getting kicked out of the house on "police trumped up " but for me I am in a warm spot and the ex isn't chasing me down or sscreaming at me (or at least I can't hear her! but this is costing money, money i do not have more than shorter term.

again thanks for the quick correct - shame to send someone off on a tangent.
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Old 01-08-2012, 12:51 AM
beebie beebie is offline
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I love this:
"She has not contributed to the family expenses except for very short working periods mostly part time."
Except that she was the unpaid slave.


Eleven years loan and no demand for payment? Equally arguable that it was a gift.
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Old 01-08-2012, 02:23 AM
billiechic billiechic is offline
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Quote:
Originally Posted by beebie View Post


Eleven years loan and no demand for payment? Equally arguable that it was a gift.
I doubt it. Maybe if it was for a couple of grand, but $100,000? Right, pocket change to the brother of a guy who cant afford a lawyer. (no offense intended)
  #25  
Old 01-08-2012, 04:29 AM
ddol1 ddol1 is offline
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but to the subject at hand in my case it is a marriage and we do own the home and this is from way at the biggining.........

Say over the yeras the mat home is bought and sold 5 times and over the years some of the what would otherwise be excluded disability funds made it into the house - concede these funds are now 50/500 just like the house 50/50/ this house is now worth 300K. 5 years ago this house was sold for the purpose of downsizing - from 300 to say 200K feeing up $100,000 out of the mat home. Say for arguements sake the last 70K put into the mat home out of desperation of loosing the house for non ability to pay the mortgage - 70K paid it off.

So say 4 months pass after paying off the expensive house and it is sold, and we move to a new town, get a much smaller home and free up the 100k, freed up the last 70k that would have been the excluded funds. what arguement can there be for the 100k cash removed from the mat home some 6 or 7 years before the date of seperation. any have comments on the validity of the disability funds being once again returned to the excluded savings account right after the sale of the bigger home and is left there divided from the regular bill payment joint account funds.

So to be clear, is there any arguement to the funds now used for only a short period of time, the matramonial home sold a nd downsixed 7 years before date of seperatioin - funds placed in the seperated account once again (this account was the long term retirement savings account (we could only put a limited amount into the rrsp due to lack of income - CPP disability is already below basic tax window where i do not pay income tax). So in effect the money was borrowed short term to save the first house (could no longer cover the mortgage with me on cpp and her on limited regular employment income which was really low - and she wasn't doing anything to increase it when i got "sickk". in the end this is why the house got sold and we moved from that city........ can i now reclaim those funds under the excluded treatment (these funds were from my disability payments and later my mom inheritance money - again being saved for retirement as i was not going to have a work pension, only a partiall GPP retirement pension of 40% of what most people will get from the government.

anybody heard of an argument like this?? Everything i come across is the mat home is sold at the date or after the date of seperation - the usual story.... never downsizing years earlier.
  #26  
Old 01-08-2012, 05:10 PM
Teenwolf Teenwolf is offline
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In determining loan vs gift, the judge will likely apply the following principles:

1. Whether there were any contemporaneous documents evidencing a loan.
2. Whether the manner for repayment is specified.
3. Whether there is security held for the loan.
4. Whether there advances to one child and not others or advance of unequal amounts to various children.
5. Whether there has been any demand for payment before the separation of the parties.
6. Whether there has been any partial repayment.
7. Whether there was any expectation, or likelihood of repayment.

If it's determined to be a gift, then the ex will likely get some of the value in the home. It won't be due to a matrimonial home; it will be due to the fact that her name is on the deed.

Last edited by Teenwolf; 01-08-2012 at 05:16 PM.
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