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  • Division of Family Assets

    We got married in 1983, throughout the marriage we had problems. As a result we mutually separated in 1996, and declared ourselves separated on Income Tax Returns. and my spouse left the home. However, he has been in and out of the house until this year 2012. In 1996 we did not split our assets. Now in 2012 we wish to do so as there has been tension all the time. My spouse works for Government of Canada and has been working there since 1982. I have been working with Government of Ontario, since 1992. Our other asset is Matrimonial Home that we purchased in 1985. When we purchased it my spouse put his parents name also on the title as a 50% interest. They never lived in the house though. Now both his parents passed away, but before their passing, I was told that they left a will to transfer their 50% interest to their son. I never saw the will. I have been living in the matrimonial home since we purchased it in 1985 and since 1996 I have been paying for all the bills and repairs. I am confused and his lawyer is confusing me much more.

  • #2
    What is your question?

    Comment


    • #3
      It is OK to be confused, you can work on that - in no way should you be getting confused by his lawyer - he/she is in the job of doing so. You do not ever take legal advice from your ex and especially your ex's lawyer!!! If you will not have a lawyer (self rep), you need to educate yourself and with your ex's proposal for the treatment of the MH - especially if you have any doubt I, would one IMHO, take it to your local family courthouse and sit with the duty council, based on this information (maybe regardless) I would find the best property lawyer that really knows this section of the Family Law Act and I am guessing the Ontario Divorce Act to review this part of your settlement. When you are 100% sure of your rights, how the law would treat this "interest" then and only then will you be ready to make your counter offer.

      As I read this post, just to put it out there, I am betting the lawyer is stating the 50% interest or half the house goes to hubby, then the second half goes 50/50 as family law so suddenly she is looking at a 1/4 share and who took care of the maintenance and upkeep for how many years while hubby floated back and forth? Lots of assumptions but from what I have learned dealing with disability and missing inheritance money.....

      I would strongly suggest she verify that the will very expressly that only their son was to benefit from this gift or inheritance (thus expressly leaving you out of it) but I would put my money into the arguement that essentially the inheritance was the 50% interest and once he left it in the MH for a very long period of time (specifically because it is the MH which we all know has the non bending manditory 50/50 division within the FLA) the case would be worthy to look at this 50% interest as now being comingled and subject to the 50/50 rule.

      lots of assumptions but at least it is a few things for you to think about/verify and I think the question you forgot to ask was answered!

      Comment


      • #4
        looks like the husband inherited half the house (his parents half) so I am thinking that part is excluded property?

        Comment


        • #5
          that's the thing as I read do my research in the FLA - with the transfer of a building if the inheritance explicitly excluded the spouse in sharing of either the property itself or the income should it be a revenue generating property, then there is a case to not having to share but when you look at the section in the FLA:
          4(2) Excluded Property
          The value of the following property that a spouse owns on the valuation date does not form part of the spouse's net family property:
          4(2)1. Property, other than a matramonial home, that was aquired by gift or inheritance from a third person after the date of marriage.
          4(2)2. Income from property refered to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse's net family property

          So maybe without the fanfare the answer lies in the Family Law Act
          Section 4(2)1. Looks like there is not much room for morals, the right or wrong thing to do. I think Mess once stated that it is possible for exiting spouses to make just about any agreement they want but if it comes down to the Family Law Act, like usual, the house has maintained that special designation of being divided 50/50 regardless of how the house was aquired.

          I suppose without details there is room to apply 5(6) - Variation of Share. But I read most times this is not applied and the rare time the circumstance has to make it unconsiousable to do so.
          Last edited by ddol1; 08-18-2012, 02:04 PM.

          Comment


          • #6
            Originally posted by standing on the sidelines View Post
            looks like the husband inherited half the house (his parents half) so I am thinking that part is excluded property?
            Hard to say for sure without seeing the details but, more than likely it would be excluded property.

            So technically he owns 75% of the matrimonial home. His parent's half (50%) of the property and 25% (half of the other 50%).

            Question, what is the ethnicity of the other party whom's parent owned half of the matrimonial home?

            Comment


            • #7
              did the parents ever put money towards the home? downpayment?

              Comment


              • #8
                When your husband put his parents name on the title of the house did you have any independent legal advice? I assume it was in you and your husband's name and his parents name jointly?

                Alternately, the house is worth more today than it was when you and your husband purchased the house. Wouldn't there be a capital gain to be registered against the estate? I would consult a conveyancing lawyer asap and find out exactly where you stand. A capital gain tax levied against the estate could be hefty if wording in will isn't correct. Just because someone works for the government of Canada doesn't necessarily mean that the paperwork is beyond reproach.

                Comment


                • #9
                  Originally posted by Tayken View Post
                  Hard to say for sure without seeing the details but, more than likely it would be excluded property.

                  So technically he owns 75% of the matrimonial home. His parent's half (50%) of the property and 25% (half of the other 50%).
                  I don't think I have ever come across with a reasoning of Tayken,that I may have to disagree with? But given what is in the FLA:
                  4(2) Excluded Property
                  The value of the following property that a spouse owns on the valuation date does not form part of the spouse's net family property:
                  4(2)1. Property, other than a matramonial home, that was aquired by gift or inheritance from a third person after the date of marriage.
                  4(2)2. Income from property refered to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse's net family property
                  If the statement or reasoning used for the interpretation of the FLA, often used in my readings(I hope the wording makes sense here), "the law implicitly left out the actual property while including income so, what was not included in this section of allowable exclusions, then law intended the matramonial home to be not included in the "Excluded Section 4(2)" or it would have been specifically listed."

                  Therefore the MH would be divided 50/50 including the 50% share inherited from the parents. Would this not be the correct reasonong or am I missing something??
                  Last edited by ddol1; 08-18-2012, 04:12 PM. Reason: to clarify wording

                  Comment


                  • #10
                    Sorry, I forgot the question. Yes, it is about division of matrimonial home. When we purchased the home, his parents were elderly living in USA and not working. Their name was put just for respect. They never lived or paid anything towards the house. They passed away in 2008. My spouse's lawyer is saying that inheritance came after 1996 ie after our mutual separation, so it is excluded. My other question would be how pension is divided? He has 30 years of work pension and is about to retire; and I have 10 years of work and need to work another 10 years before I can retire.

                    Comment


                    • #11
                      I would think that for the parents interest to be excluded from the matrimonial home the wife would have received ILA and waived her dower rights.

                      When I owned homes independent of my husband he had to receive independent legal advice to waive his dower rights. Even with him doing this he was still entitled to 50% of the increase of value from the time the house was purchased. Sometimes when people have homes for many years that 50% value of increase in purchase price can come down to more than what the house was originally purchased for.

                      Comment


                      • #12
                        Thanks to all who responded. Yes, I forgot my questions, I posted questions today. I am using this forum for the first time.

                        Comment


                        • #13
                          The parents did not actually invest anything into the purchase of the home. A judge would question, why on earth would you just "gift" half the home to them? As you say, it was out of respect. OK. But the judge would see it that the mat home was the mat home, 50/50 between you two.

                          Comment


                          • #14
                            Kayal, I have to ask - have you actually spoken with a lawyer yet?

                            Why is he saying your date of separation was in 1996? He moved back into the home, and presumably you have lived as a couple until 2012 (unhappily of course, but as a couple). I would think your date of separation would be in 2012. What you have filed with Rev Can as to matrimonial status has no true bearing on how the FLA will deal with property division.

                            And I agree with Mess - the parents invested no money, presumably held it in trust, the share was heired to the son on their deaths. It is your matrimonial home, 50/50 split.



                            As to pension - you have been married since 1983 (almost his 30 year pension). You are also entitled to a 50/50 split of the majority of his pension.


                            If he is the higher earner, you might also want to look into spousal support.
                            Start a discussion, not a fire. Post with kindness.

                            Comment


                            • #15
                              I will add that mcdreamy has maybe just put one of the most valuable points in terms of your final net properties assuming you are actually going through with the legal process of seperation now....

                              The family law act does look at the idea of how long have you been married, if you reconciled, even if unhappily, even if it is an on again off again as many couples do not live under the same roof all the time but still retain what the FLA considers "married" and it does not match what the CRA uses to determine marriage status.

                              The pension division which would be 50/50 while married and if you were actually living together in the same house living or representing yourself as some form of couple - you date of seperation, your final seperation could be stretched to 2012, or another 6 years and a good pension (although offset by yours) may rival the value you are rightfully contesting, or should be, in the mat. home. (sorry plus what I believe Arabian put there too regarding the sorry was it dowery rights? and what would be the difference in capital gain or final net worth of the house at your final and proper Valuation)
                              Last edited by ddol1; 08-18-2012, 08:44 PM.

                              Comment

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