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Old 01-22-2017, 07:30 PM
alberich alberich is offline
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Default Matrimonial Property and resulting trust claim

Hi everyone,

I will try to keep this concise.

- My ex wife and I (not yet divorced) were married for 13 years, and have been separated for 1 year now.
- We have 3 children, and have been sharing custody 50/50 since separation.
- I moved out of the matrimonial home to avoid conflict. However, the house is in my name only.
- A little background about the house; we briefly separated in our 10th year of marriage.
- We sold our first matrimonial home. As part of a separation agreement then, she received 75% of the proceeds of the sale and me 25%. I used my share to purchase the new matrimonial home.
- We reconciled. However, her name has never been on the deed or the mortgage.
- I have always paid the mortgage, taxes, and insurance, alone.
- After moving out, I continued paying 50% of the mortgage, taxes, and insurance for another 6 months. I stopped when I realized she had no intention of moving out.
- She works and earns approximately $80K/year. Her father also resides in the home. He also works, and earns approximately $60K/year. They can handle all the bills while they both live there.
- She hasnt paid any of the household related expenses for the past 2 months (mortgage, taxes, hydro, water, gas, ect.)
- She is taking me to court claiming resulting and constructive trust. She claims the house was purchased using funds from the sale of the previous matrimonial home.
- One fact thats concerning me I advised my real estate lawyer to simply transfer my share of the proceeds of the first matrimonial home toward the purchase of the new house, instead of releasing them to me and then issuing a draft for the new house.
- I understand, and I accept that she is entitled to half the value of the matrimonial.

Question #1: Why is she taking that route? Having the house listed under my NFP will give her a large equalization payment, which I am prepared to pay. If she was successful in her claim, it would actually reduce her equalization payment by approximately $50K. Wouldn't her lawyer bring that to her attention?

Question #2: If I was to concede Resulting trust, which in turn would lower my equalization payment, could a judge then force me to transfer title of the house to her? There is still a substantial mortgage on the property. I will always be able to refinance the mortgage to buy her out. But, She will never qualify for a mortgage on the property.
Any thoughts, advice, or links to similar cases would be greatly appreciated.

Thank you,
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Old 01-22-2017, 08:09 PM
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arabian arabian is offline
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Presumably you are familiar with CanLii? See the attached and note the search words I used and you might be able to come up with case law which more closely matches your situation.

In this case the judge focuses on the intent of of the initial separation agreement. What is in your separation agreement may or may not be relevant.

If I see anything else which may be of interest to you I'll post it to this thread.
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Old 01-23-2017, 11:47 AM
alberich alberich is offline
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Thanks Arabian. Yes I have gotten familiar with canlii. But, I still can't find anything similar to my case. I will keep looking nonetheless.
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equalization, matrimonial home, resulting trust

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