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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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  #11  
Old 01-06-2012, 01:55 AM
Teenwolf Teenwolf is offline
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I hear ya! The thought of self rep in court is stressful and daunting. As long as you can prove the 150K is debt, I believe her application for 75K will be dismissed.

You can counter her application with a motion for primary custody of the kids and CS. You already have them, which I believe will go in your favor. I don't know your circumstances, but I would also argue the SS amount. If you get primary custody of the kids, you'll be in a situation whereby you're the SS payor and the CS payee. Any CS received would at least offset the SS owed.
  #12  
Old 01-06-2012, 06:29 AM
standing on the sidelines standing on the sidelines is offline
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was there a loan agreement written up with your brother and your parents at the time they gave you the money?? Can you show where some repayments have been made??
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Old 01-06-2012, 10:40 AM
lorlaman lorlaman is offline
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Hi SOTS
There is a agreement between my brother and I which provided the loan to be interest free. The principal is demanded back.

There was no loan agreement written with my parents only verbal. My dad passed away and cannot speak for himself, however, my mother is still with us and able to testify. Further, the loan made to me is clearly identified in my parent's will written 6 years ago and deducts the loan amount from the inheritance I am to receive since repayment was not made.
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Old 01-06-2012, 04:13 PM
Teenwolf Teenwolf is offline
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Okay then...you have documentation for both. You have a loan agreement with your brother for 100K and 50K is tied into your inheritance, which is written in a will. Show her copies of these docs. If she still persists that it's a gift, then you'll end up in court. I believe the docs will dismiss her application.

Last edited by Teenwolf; 01-06-2012 at 04:58 PM.
  #15  
Old 01-06-2012, 04:48 PM
standing on the sidelines standing on the sidelines is offline
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sounds like you have a case then!!
  #16  
Old 01-07-2012, 01:47 AM
ddol1 ddol1 is offline
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lorlaman - hate to throw a monkey wrench in but..... you have what might be termed a loan from your parents - documented in the will and DEDUCTED if not repaid. There may be an easy case for someone to get that loan redefined as actually an early inheritance which would then not be a loan.

now that it is called an inheritance - you chose to put it into the matramonial home. Once you did that your ex then again has the right to demand 50% of the equity in the home as per standard family law. You need to make real sure you close that obvious loophole that any bad lawyer would be able to create in thier sleep(in other words it is too easy to get this done and you are out of 75K and you will not have much of a defense - non actually)
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Old 01-07-2012, 02:02 AM
Teenwolf Teenwolf is offline
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Quote:
Originally Posted by ddol1 View Post
now that it is called an inheritance - you chose to put it into the matramonial home. Once you did that your ex then again has the right to demand 50% of the equity in the home as per standard family law. You need to make real sure you close that obvious loophole that any bad lawyer would be able to create in thier sleep(in other words it is too easy to get this done and you are out of 75K and you will not have much of a defense - non actually)
Careful with using the term matrimonial home. They were not married. They were CL, and the only reason why she has any stake in the house is due to her name on the deed.

You may have a valid point, but you appear to be applying matrimony law here. In NS, your argument is covered under the Matrimonial Property Act, which doesn't apply to CL.
  #18  
Old 01-07-2012, 02:03 AM
beebie beebie is offline
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You may allege a loan agreement but did you ever make a payment? If not, might be interpreted as gift.

Or maybe your loan was due on sale of house?

I think your ex may be referring to situation where exempt monies are deposited into joint account or used for down payment and thereby half is gifted to other party.

Try searching "matrimonial property" and "gifted". Hope I am not misinforming you.
  #19  
Old 01-07-2012, 02:14 AM
Teenwolf Teenwolf is offline
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Quote:
Originally Posted by beebie View Post
Try searching "matrimonial property" and "gifted". Hope I am not misinforming you.
Once again, matrimonial applies to people that were married. They were CL. Check out this case law: http://www.canlii.org/eliisa/highlig...011nssc34.html

They were CL and had a house jointly owned. However, the guy put 20K towards it from a previous solely owned property. In item 76 the judge states "Although the Applicant originally sought an unequal division of the net equity in his favour to take into account the $20,000.00 equity that was transferred from the house that he owned in 2003 to the house in Ottawa and eventually to the house in Cole Harbour, he is now satisfied that he has received that money back through the refinancing of the mortgage which took place in 2009."

This leads me to believe that the judge may have awarded him a 20K unequal division of the net equity, had the applicant not conceded to getting that money back. This whole "matrimonial home" thing doesn't apply because they were CL.

Also note that "net equity" was the factor. There is no equity in the Op's home because the money is still owed. He has a loan for 100k with his brother. The other 50k is factored into his inheritance. A CL partner doesn't get 50% of your inheritance. He may have a snag though, if he deposited that 100k or 50k into a joint account.

Last edited by Teenwolf; 01-07-2012 at 02:30 AM.
  #20  
Old 01-07-2012, 02:27 AM
beebie beebie is offline
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Right that was matrimonial property law but are you totally sure that law of constructive trust won't result in same division?

Also here is the case quote from an Alberta case. Wife got one quarter of gift. Alberta matrimonial property law allows exemptions from property division and not sure if Ontario law also does or if house is just divided slam dunk :

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.
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