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Old 08-20-2011, 11:31 AM
zoltar zoltar is offline
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Default Matrimonial Home, Residency and Residential rights

I have been living and working in England for the past seven years. For the past five my wife and daughter have been in Canada. Because of my generous holidays I travel back to Canada for up to 17 weeks of the years, spread around Christmas, summer, etc.
During all my time in Canada I at the home my wife and I purchased together. Throughout this time we have lived as man and wife. We have had issues throughout, but this Spring I asked for a divorce.
My wife has since decided that she is going to keep the entire house. I paid the entire down payment from my savings in England, and I have been sending large amounts of money throughout the year to pay for upkeep, maintenance, mortgage, my daughter etc. In addition, every moment I have spent in Canada has been consumed by home renovations. I have rebuilt this fixer-upper house from top to bottom. We remortgaged the house at one point, using the equity we had built up, to continue the renovations. I have done most of the work myself. My wife has a good job and makes a fair amount of money, but the money I have been sending has also been substantial.
My wife is an intelligent woman and capable of working a scheme. She has gone and redone her taxes back to 2006 to make it appear as if that was the date of separation. She has also claimed this date in the divorce papers she filed and delivered to me. The problem is, this date is clearly a fiction. What judge would fail to see this? What judge would imagine that I put that much time and money, that we would remortgage the house together, that we would finance all new windows just last summer, that we would put a new roof on the house, that I would continue to pour time and money and energy into a house in which I no longer lived, nor had much of an interest in? What judge would fail to see that her redoing her taxes at this late point is a desperate attempt to create a fictitious past? In addition, every member of both our families knows that we have been living as husband and wife this entire time?
Residency. She seems to think she can get me on residency. Her reasoning is, if I am not resident in Canada then the home cannot be considered a matrimonial home. Never mind the fact that my name is on the house's deed, how does residency apply to a matrimonial home. I have continued to have 'residential ties' in Canada, including a home that I have clearly been living in and renovating, a dependent daughter, a spouse, Canadian Drive's license, other family, etc. Now, I have not lived in Canada for 183 days in any of these years, the minimum for 'residency' as such for income tax purposes, but I seem to qualify in every other manner.
I am certain she is grasping at straws here? What can I show her to avoid dragging the two of use into court with expensive lawyers in a case she is bound to lose. I certainly don't want to spend my money on such a pointless endeavor, and I don't want her to spend money that would be better spent on my daughter. I am also worried that what she has done here is verging on fraud. If the Revenue people find that she has been playing around with the system she could get in a lot of trouble.

Anyone have any knowledge of the law in this regard? I need something solid to show her to get her out of this mindset.
Old 08-20-2011, 12:04 PM
Mess Mess is offline
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You are pretty solid but you can't sit back and do nothing about it.

You need to present all of the arguments you made here, and you will win. But you have to gather facts to back up the arguments.

If she argues no and you argue yes and there are no facts attached to the back, then both of your arguments are meaningless and the judge flips a coin.

What I mean by arguments and facts, you construct an argument about the true separation date and why it should be so. Back this up with details including the home renovations, etc. You back up your statements about the home renovation with receipts and bank statements and any other documentation you can find. You also get affidavits sworn by your friends and family, doctor, anyone you can think of. If they are relatively independant (doctor is better than mother for example) that is better, but any affidavit is better than none.

Stop and think a bit about what the date of separation actually means for you. At this point it seems to revolve around the matrimonal home so focus a lot of your proof on that.

Keep in mind that if she happens to win, you will seek redress for your labour and investment in the house post-separation as a constructive trust or some other possible suits. But it will help you to gather the information and statements ahead of time.

Make lists, gather proof, this is what you will need to do now. A case can drag on for years, the longer you wait the harder it is to collect this stuff. Having all of the proof in hand can also pressure her to back off act sensibly about the whole thing.
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