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  • 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!

  • #2
    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


    Sent from my iPhone using Tapatalk

    Comment


    • #3
      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?

      Comment


      • #4
        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.

        Comment


        • #5
          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 doesn’t 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.

          Comment


          • #6
            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 doesn’t 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.

            Comment


            • #7
              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, you’ll be lucky if you get 1/3 of your costs awarded... and then it’s up to you to somehow collect your costs if the other party refuses to pay.

              If you don’t 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,

              Comment


              • #8
                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.

                Comment


                • #9
                  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.

                  Comment


                  • #10
                    Originally posted by rockscan View Post
                    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.

                    Comment


                    • #11
                      Originally posted by alongjourney View Post
                      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.
                      If you have a court order that says you get to buy her out for the price set by the appraiser, then why are you here complaining? You have the price, so now complete the transaction.

                      If she refuses to complete the transaction, you go to court to dispense with her consent. Court is great at forcing people to do stuff that they don't want to do.

                      That said, I suspect you don't have an order that automatically entitles you to buy her out at the price set by the appraiser.

                      Comment


                      • #12
                        Matrimonial home value: separation vs later date?

                        Originally posted by Janus View Post
                        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.


                        I don’t agree with his attitude about the value of the house. I was trying to recommend an approach that may avoid losing thousands losing in court.

                        I will also state my common comment: how much is the value and how much do you stand to lose in court. If the value you will gain by getting what you want is say $25,000 and you will pay a lawyer $25,000 to fight it and her $25,000 in costs because you lost, you are out money.

                        Plus the ongoing emotional bs about how you stole from her. Not fun.

                        Comment


                        • #13
                          Correct, no court order for purchase of house. Only for appraisal. Mediation that was scheduled is now postponed at her request. So yes, things aren't going anywhere. :

                          The longer the wait the higher the mortgage will be, and to get a mortgage approval I need a separation agreement that provides the amount of child support / spousal support otherwise no lender will touch me. And that will likely drag on and on while home prices skyrocket.. Already went up by 45k (~8%) since last year

                          And if we sell and she gets her money before anything else is settled well chances are she'll use that to fuel her legal battle, per her multiple threats over the last year.


                          Oh well. such is life. At least the kids are now happy, sleep well, and are healing over time. I'm just hoping everything can be done before the probation order expires

                          Comment

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