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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 06-08-2013, 10:33 AM
GoldCanRust GoldCanRust is offline
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Default Common Law Property Settlement

Looking for some direction.

I have been living common law in Ontario for the past 12 years. I moved into my partner’s home that she salvaged from her divorce. As she was cash strapped by then I thought it was “fair” to buy out the share that she had to pay her former spouse ($25,000).

We shared all costs equally (have similar paying jobs) including the mortgage. After a year we decided to finish the lower level to gain more space. I hired a contractor and spent $40,000 on the job. She did not contribute to this cost and I was not concerned as we will after all planning live happily ever after! While the work was being completed she suggested that we have the title of the home held jointly. I visited a lawyer and he pointed out the costs involved with the land transfer tax etc. He listed the options as: pay these costs now and add you name; wait three years and we’d be considered common-law spouses or if we were to marry then the point is moot.

I decided to wait and a year later we became engaged. I did not think of the title much after that.

So early this year she informed me that our relationship was over and that she was listing the house. This was a huge surprise as although we were not “perfectly” happy, I would never have imagined that this would be the result.

I moved into the lower level and we continued to share all costs. Despite many, many attempts I could not get her to engage in a discussion on either the relationship or when it became painfully evident that this was, ”over” on a settlement on the property. She would often agree to discuss it later but she simply would not. When I pressed her for information she would reply that I had to cooperate to continue living here, the house was hers and subtle hints that I was stressing her with these questions. She listed the house on her own (I came home from work one evening to find a for sale sign on the front) and we slowly began the path of packing, storing and prepping the house for sale. All through this time I was certain, that knowing her these years that she would share a reasonable amount of the equity ( the house was listed for $350,000 and there was approx. $180,000 on the mortgage).

After two months I was informed that my presence was causing her stress and that I needed to find my own place. After three months she insisted that I find my own place. By then living there was, as others have posted intolerable and I informed her that I could not afford rent and support the home. She agreed and said that she would get through the remaining months until it sold. That was the longest discussion that he had in months. When the question of the property came up she informed me that there would not be a lot as she had paid off some debt by adding it to the mortgage. I figured that she had added $10-$15,000 (maybe) but she hinted that the mortgage value was more like $250,000. I could and do not believe this. I asked to see a copy of the mortgage (remember it`s in her name) and she refused. Anyway, this went on for a few weeks and I finally made the leap to a place of my own but insisted that we needed to settle the equity…that was always greeted with silence. By the time that I was ready to move out she told me that I would not get anything from the sale as it is her home and my contributions were for rent and anything that I had invested was in equal measure to her own.

We have now been living apart for weeks and any attempts to get information on the sale or discussion on the equity go unanswered. I sent her a summary of all my expenses while living there which easily amount to over $70,000 into the capital and over $100,000 in my share of the mortgage payments. This did not interest her, she says I was simply renting. Although our CRA returns list us both as common-law, she is steadfast in offering nothing which then swings to there will be nothing to share after the realty and legal costs, the lowered price and the debt on the mortgage. While she admits that I have made these and other contributions, knows that the home value has increased since the reno and knows that she alone dumped all this who knows what debt onto the mortgage, she is comfortable and confident that she has the law on her side.

The last e-mail exchange stated that this was beginning to feel like she was being harassed. This was likely due to my letter that requested a meeting to review the documents so that I could try to come ot a reasonable division. As I suspected that she would not agree I said that she had a week to reply or that I would be forced to discuss this with a lawyer and if it came to that then I would seek 50% which is less (by my calculations) that what I have added to this sale. To date I have only heard that I am stressing her and she feels….harassed.

I know that I have a case with all the documentation to show my contributions, including the letters from the realty lawyer 11 years ago to show “unjust enrichment”

The clock is ticking as I suspect that she has sold the place and will move into a new home; applying the equity to her down payment thinking that once it is locked up, then it is untouchable.

So, I am in need of some solid advice on how to move this to a reasonable end. I did not add debt to the mortgage and I also do not believe that I would receive the $70,000 plus, but I am more than surprised to be told that I should expect nothing! Without information on the mortgage balance or the sale amount I cannot make a fair calculation.

Any ideas on how to proceed to resolve this between us (similar published cases) or do I consult a lawyer and risk losing a fair chunk of any possible settlement
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  #2  
Old 06-08-2013, 01:51 PM
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arabian arabian is offline
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I would retain a lawyer asap. You or your lawyer should find out if the house has been sold. I would discuss your options with your lawyer and perhaps have a lien placed on the property. Amount of lien will be held in trust from sale proceeds until your dispute is resolved. She may offer to settle out of court with you.

I would imagine that it is important for your lawyer to act quickly. You may not be 100% successful in your quest to get 50% of equity in home but at least you should be able to slow down process until such time as it is determined what, if any, you are entitled to.
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Old 06-08-2013, 03:31 PM
OrleansLawyer OrleansLawyer is offline
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I would retain a lawyer asap.
This is the best advice you are likely to receive.

You may wish to make a claim for a constructive trust on part of the home. The likelihood of success should be explored through counsel. Hiring a lawyer usually indicates you are serious and may help bring about a settlement.

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wait three years and we’d be considered common-law spouses
This was poor advice. Living with someone provides no property rights, whether there is a relationship involved or not.
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Old 06-08-2013, 04:03 PM
GoldCanRust GoldCanRust is offline
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Thank you for the quick reply. It seems that this is the only path given her reluctance to be reasonable. All I am asking from her is a reasonable amount and was quite surprised that the first and only offer was zero. I will let you know how this resolves and how much was eventually split 4 ways!
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Old 06-08-2013, 04:10 PM
GoldCanRust GoldCanRust is offline
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I am seeing the seasoned advice! Thank you for your time. I have tried to describe how serious I am about pursuing this, all that I have gotten now is a hint that my e-mails are of a harassing nature. So I suppose that the next communication from me should be to her from a lawyer? The irony is that the amount that she had spent on her divorce 13 years ago, and what she and I will spend this time will far out way what I would call a fair settlement. I guess that is just the way t goes. Again, thank you for your time!
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Old 06-08-2013, 04:16 PM
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Quote:
Originally Posted by GoldCanRust View Post
The irony is that the amount that she had spent on her divorce 13 years ago, and what she and I will spend this time will far out way what I would call a fair settlement. I guess that is just the way t goes. Again, thank you for your time!
And what would you consider to be a fair settlement?
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Old 06-08-2013, 04:35 PM
OrleansLawyer OrleansLawyer is offline
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what she and I will spend this time will far out way what I would call a fair settlement.
A reasonable offer to settle, accompanied by a letter detailing what you will be seeking should the matter proceed to court and requesting that she consult with a lawyer over the likelihood of your claim's success and her likely costs in defending against it can do wonders in encouraging settlement.

And, if it doesn't, there seems to be a fair bit of equity available to cover a cost award, on the assumption your offer to settle is in fact reasonable.
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Old 06-08-2013, 04:39 PM
GoldCanRust GoldCanRust is offline
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Default Reasonable Settlement

This would be much easier to answer if I knew the sale price and the mortgage balance. When it first went up for sale at $350,000 with a mortgage of $180,000 I expected that there could be a difference of $130-$140,000 depending on fees etc. So a settlement of $40,000 to $50,000 (1/3rd) in my view was more than reasonable given that she only owned the house for a few years before I moved in and that I also had bought out the equity that she paid her former husband. I also factored in the savings of any legal costs at the time if it became a battle, so in trying to be "reasonable and fair" I thought that if she were to emerge with $90,000 or so then it would be appealing. Now that she claims that she claims to have dropped the price to accelerate the sale and added debt to the mortgage raising it to $250,000 ($70,000 of debt that I do not understand as I am unaware of any large purchases) then it becomes difficult to assess and the 1/3rd thinking means that I assume this debt that she claims. I am working blind without these facts.
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Old 06-08-2013, 04:52 PM
GoldCanRust GoldCanRust is offline
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Quote:
Originally Posted by OrleansLawyer View Post
A reasonable offer to settle, accompanied by a letter detailing what you will be seeking should the matter proceed to court and requesting that she consult with a lawyer over the likelihood of your claim's success and her likely costs in defending against it can do wonders in encouraging settlement.

And, if it doesn't, there seems to be a fair bit of equity available to cover a cost award, on the assumption your offer to settle is in fact reasonable.
Over a week ago I sent a detailed letter describing my contributions and injections of cash into the home. I included copies of supporting documents laying out my "case" in the hope that she would take the request seriously. I asked for an update on the sale (still do know if it is sold) and a copy of the current mortgage balance as she claims it is at $250,000 due to personal debt that she piled onto it. My suggestion was that once I know these balances, then I could work with her to come to an agreement. She acknowledged the letter and replied that she would not show me any documents and countered that if I were to pursue the matter then she would want 50% of my assets and I would take on 50% of her debt? (how much more can there be??) In any case this sounded ridiculous and was made worse by her statement that there would be nothing left after fees, debt repayment and the money she will use for her child's first year of university! Yes you read that correctly, I have no idea how she believes that I am responsible for her child's schooling.

My response was to reiterate the points that I made and asked for the documents. Since I am concerned that she is delaying matters I added that I would want to receive these by the beginning of next week. If she chose not to agree, then I would discuss the matter with a lawyer and my thinking was that 50% was reasonable as I had proven in my letter that I actually have a larger financial investment in the home that she has. This was met with a "no"....and a message that my correspondence was beginning to sound harassing.....I have not sent anything since,

Last edited by GoldCanRust; 06-08-2013 at 04:55 PM. Reason: addition
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Old 06-08-2013, 05:01 PM
GoldCanRust GoldCanRust is offline
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To answer a point that you made (OrleansLawyer) (assuming your offer to settle is reasonable), I can assure that I simply need to know the two numbers, the mortgage and the sale price (including costs) to come to an agreement, however I still hold onto the hope that the mortgage balance has not been augmented and that it remains around $180,000. If in fact she has tripped this up to $250,000 as she claims then I really do not know what to say...not that her new or hidden debt is my responsibility and how do I know that this is not part of a down payment on a new place via a home line of credit? Complicated for certain and I am absolutely baffled by the change in behaviour.

Last edited by GoldCanRust; 06-08-2013 at 05:19 PM. Reason: error
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