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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #1  
Old 02-08-2020, 01:36 AM
alongjourney alongjourney is offline
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Question Matrimonial home value: separation vs later date?

I'm getting some opposite opinion from two lawyers and can't find what I need on canlii so I figured that I might as well post here..

Situation:
Joint ownership of the house. Separated late 2018, was like a grenade and wife ended up in psych ward, moved out after CAS got involved, was about to put the house for sale but hell broke loose and she was then criminally convicted and released on probation (ie: can't come near the house). Summer Case conference got postponed due to another mental breakdown, followed by a change of lawyer which meant the fall one was delayed to the end of 2019. Walked out of case conf with a court order for house appraisal amongst others.

I want to buy her half so that the kids can have a stable home. The value of the house went up by 10% between the two dates due to the crazy real estate market around here so it's a good chunk of money. She was the cause of delays yet she wants the current value of the house.

My position based on what I understand of family law and canlii:
- Everything else is valued at separation date so that's what it should be. I couldn't find any case law that says otherwise with a reasonable delay (ie: when the delay is years, they use current value at trial date). And I do not have to pay occupation rent because she was excluded from the house due to criminal court (not exclusive possession per family law)

My lawyer's position:
- house is jointly owned and an asset so the ex is entitled to the current value unlike cars or other accounts.

2nd lawyer I spoke to:
- The valuation date is separation date for everything although he admits the other lawyer may have a point however he is unsure...


Any advice on this? This high conflict divorce is already quite costly with her dragging things along..

Thanks!
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Old 02-08-2020, 01:40 AM
phatkid77 phatkid77 is offline
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Imagine. Two lawyers. Two different opinions
Personally, I think it should be from the date they move out....
3yrs later mine got current value.... makes no sense!
Good luck


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Old 02-08-2020, 03:23 AM
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Janus Janus is offline
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She does not have to allow you to buy her out. She can have the house go to market and then you can bid on it.

Why would you, as the purchaser, get to dictate the price of the house?
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Old 02-08-2020, 12:28 PM
alongjourney alongjourney is offline
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Quote:
Originally Posted by Janus View Post
She does not have to allow you to buy her out. She can have the house go to market and then you can bid on it.
So she can drag the process for as long as she wants yet still be entitled to present value of the house?

The intent of the appraisal (per court order) is to provide a fait value so that I can buy her out and that the kids can keep living there.. both parties agreed on the appraiser.
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Old 02-09-2020, 12:15 PM
Stillbreathing Stillbreathing is offline
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She can say no she does not want you to buy her out as the above poster said. Then the house goes up for sale on the open market and you can put in an offer to purchase. Since the home currently also belongs to her she is entitled to half the current market value. Think of it this way, if you own a rental property with your college friend where you both live and you move out, are you ok accepting the value of the house on the date you moved if it doesnt sell until several years later? I doubt it. You are on title and are a co-owner whether you live there or not. Just like you would still be responsible for the mortgage after you move out. You are still entitled to your share of the equity until the day it is sold.
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Old 02-09-2020, 01:47 PM
alongjourney alongjourney is offline
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Quote:
Originally Posted by Stillbreathing View Post
Think of it this way, if you own a rental property with your college friend where you both live and you move out, are you ok accepting the value of the house on the date you moved if it doesnt sell until several years later? I doubt it.
Fair enough, I guess it will have to be current market value.

But it still pisses me off that I wasn't able to buy her off well before due to her behavior that caused delays and criminal court proceedings.
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Old 02-10-2020, 08:49 AM
Stillbreathing Stillbreathing is offline
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You are absolutely right to feel pissed off. Family court has a tendency to allow bad behaviour without much in the way of consequences. If your matter ends up going to trial you can ask for costs but even if you are awarded costs, youll be lucky if you get 1/3 of your costs awarded... and then its up to you to somehow collect your costs if the other party refuses to pay.

If you dont go to trial, the only way to get costs is if you win a motion and then the same bs applies. Family court is an unfair, toxic, dehumanizing place even if you are the winning party,
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Old 02-10-2020, 07:04 PM
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Jointly owned asset, she gets the increase in the value post-separation. However, you might be entitled to the mortgage payments you made on her behalf (her 50%) after the date of separation.

Also, you can't force the other person to sell you their half. This has to be negotiated.
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Old 02-10-2020, 07:53 PM
rockscan rockscan is offline
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Quote:
Originally Posted by Kinso View Post
Also, you can't force the other person to sell you their half. This has to be negotiated.

Being difficult and set on a lower amount makes the other person less likely to do what you want.

You could present two options: the value at the higher rate period or the value at the higher rate less the amounts you paid to maintain the house in her absence.
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Old 02-11-2020, 12:35 PM
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Quote:
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You could present two options: the value at the higher rate period or the value at the higher rate less the amounts you paid to maintain the house in her absence.
He was not paying occupation rent. The mortgage payments would likely be considered to be offset from that.

If he wants to buy her out, he has to buy her out at current value, which is whatever value SHE thinks it is. If they disagree, as I said, the house can be sold on the open market and he would certainly be allowed to bid on it.
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