Personal Finance

Matrimonial home in Divorces in Ontario

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  • Feb 1st, 2019 4:22 pm
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Deal Addict
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Mar 9, 2012
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angryaudifanatic wrote: Firstly, I get what you are pleading here, but no, it's not nearly as simple as that, and the courts do not care who is the applicant is in a divorce application.
Divorce Law in Ontario requires equal division of net family assets (those that are gained during marriage) which include the home, regardless of who had that home before the marriage. Once married, the home is matrimonial. However, as I mentioned, since the marriage will be short (if he separate NOW), his spouse is NOT LIKELY able to attain her full 50%. However, certain factors might determine the exact percentage she might get, they'd include: Children of the marriage (which might include her child, and 100% for sure includes his child), and also include who brought the action forward for divorce, since SHE is the one that has to "suffer" his decision to end it.

What we have to remember though is that the judge can factor anything he/she wants when deciding the equalization. No firm rules for short marriage, just strong suggestions. The judge will factor in these things; his child, her child, her schooling, the short marriage, and who initiated it. As you said, "it's not nearly as simple as that", my link shows (which is Ontario law) that the number can vary with short marriage - when they factor in details.

Lesson? Don't marry someone that you don't want to spend the rest of your life with.
Why can't we all just get along?
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Nov 10, 2018
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jeff1970 wrote: Divorce Law in Ontario requires equal division of net family assets (those that are gained during marriage) which include the home, regardless of who had that home before the marriage. Once married, the home is matrimonial. However, as I mentioned, since the marriage will be short (if he separate NOW), his spouse is NOT LIKELY able to attain her full 50%. However, certain factors might determine the exact percentage she might get, they'd include: Children of the marriage (which might include her child, and 100% for sure includes his child), and also include who brought the action forward for divorce, since SHE is the one that has to "suffer" his decision to end it.

What we have to remember though is that the judge can factor anything he/she wants when deciding the equalization. No firm rules for short marriage, just strong suggestions. The judge will factor in these things; his child, her child, her schooling, the short marriage, and who initiated it. As you said, "it's not nearly as simple as that", my link shows (which is Ontario law) that the number can vary with short marriage - when they factor in details.

Lesson? Don't marry someone that you don't want to spend the rest of your life with.
1) The assumption at this stage that it qualifies as their matrimonial home has not been confirmed by the OP as my questions have not been answered. Assuming that it is, at this point, is nothing more than a strong assumption based on probabilities, but I, for one, have not ruled out all possibilities here.
2) The fact that she has to "suffer" from his decision to end it has no bearing on anything other than the fact that her financial picture and her life will change, just as his will. An applicant/respondent in any divorce case is nothing more than just that. A Judge will indeed factor their lives, individually, post ruling, but divorces are not punitive in any nature. Your comment that he somehow will be punished because he brought forward the application cannot be more wrong. We MAY be talking about the same thing with regards to their post financial future but to imply that a Judge will assign blame and thus look at the fact that he is the one bringing forward the application is incorrect. If SHE brought forward the application a Judge will look at HER financial implications, in exactly the same way, as in this case should the applicant move forward.
3) Judges rule based on case law and look at a variety of factors. Sometimes they rule in a predictable manner, and sometimes they don't, in which case there are avenues for appeal.

As far as the OP goes, there are still questions that I need to have answered before I can provide some more advice. The one question that I am eagerly awaiting answered is how long has the OP been cohab'ed. If anyone jumps the gun here and goes, well, he was widowed for 10 months prior to entering this - all I will say to be respectful to all parties and not divulge anything further is "never make assumptions" when dealing with Family Law.
For legal topics and discussions, the opinion, guidance, and thoughts provided are my own and are not considered to be legal advice, in any manner.
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May 4, 2014
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Careful what you say to your wife from now on, it could well be used against you later. This whole thing reeks.
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Feb 22, 2006
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Ottawa, ON
angryaudifanatic wrote: Ok, firstly, read this for what it is, advice and thoughts, and like my signature states, this is not to be considered as legal advice. I will also warn parties that this post will be very lengthy.

Also - this case is a prime example of what I believe is a massive opportunity for both parties respective counsels to make a lot of money here. While only 3% of cases go to trial, I can certainly see how this may end up at trial. Be very careful with how you proceed here.

I will get to the OPs questions, but I need to start with my own first.

To the OP:

1) How long were you two cohabitating together? How long has she been physically living in the house that both of you are living in? This may be a very significant factor.
2) While a long shot, there is certainly no arguing the fact that both of you are married. That said, you mention that you live in Ottawa (presumably in the matrimonial home), and she is studying in Toronto. Well, under the Ontario Family Law Act (FLA), the matrimonial home is very clearly defined. Are you absolutely sure that she actually lives in the house you guys both live in? If she's studying in Toronto, and visits you on the weekends, on what basis are you or is she claiming that the matrimonial home is now her primary residence, especially since it appears to me she spends more of her time in Toronto.
3) I will not start citing cases now, but during this marriage, can you describe your relationship? Were you two intimate? (yes, I know, sorry, personal question, there is a reason I'm asking this.)

Couple of things in regards to equalization here.

While you are right, that you brought in this property into this marriage, this home may be considered a matrimonial home, or it might not. Part of it is figuring out where her primary residence is, and also, to see if she has a valid "interest" in the property. That said, please don't for a second immediately jump to the fact that she may in fact have a right to equalization (by the way, the NFP calculations in this thread are not accurate, at all.)

Here are a few things, and I'm going off of memory here so someone correct my dates if I'm wrong, or spellings of these cases. There is precedent in the courts that short marriages have a very radical reduction in presumptive entitlement. In Millward v MIllward (2003 I believe), the judge awarded no equalization payment at all in their 11.5 month marriage and in that case they had marital troubles early on. In Reid v Reid (same year), the Judge was dealing with a marriage of 18 months with 16 months of pre-marriage cohabitation. He awarded the wife 15% of the presumptive entitlement, which in her case she received 7.5% of the difference of NFP rather than the 50% that people here are scared of. I believe post 12 is referencing the Sarcino v Sarcino case in 1997. Their marriage lasted 42 months and the husband was the one who brought the matrimonial home into the marriage and improved said home with no contribution from the wife. In that case, the wife (IIRC had kids). The Judge ruled that if the marriage would have lasted 60 months than the wife would have gotten the full 50%, so in that case, she was granted 42/60 of the presumptive entitlement.

In Kucera v Kucera in 2005, the couple separated after 10 months of marital cohabitation. The issue in that case was whether or not an equalization payment of roughly $85K was considered unconscionable. The Husband had built the house in the early 90s and thus he brought in that property to the marriage, and yes, the house was considered a matrimonial home. At the end of it, the Judge did rule that under strict application of the Act that she would have gotten the $85K, but in that case, the Wife was awarded 1/6 of the presumptive award.


All this to state, welcome to law. The way I would look at this is:

1) I want to understand more about the total cohab relationship length.
2) What the relationship has been like during the 4 months.
3) On what grounds can I attack the marriage, or reduce equalization based on precedent(s) here.

There are some other questions that the OP answered which I will try and answer.

If you sell your house, it would no longer be considered matrimonial property and you would then be able to deduct the value of the house at DOM. That said, will she be able to see through it and call it out? Perhaps - but you and I are both reasonably intelligent people here. Think about what I just said there. The burden would also shift to her if she tried to call you out on it but I think she'd lose that argument - although now you have stated your thoughts on a public forum, so....

That said, your biggest challenge is to convince your spouse to sell the house. If you attempt to sell the home without the consent of the other, then the transaction may be set aside by a court altogether, and you don't want to be in that position. You could also take out a MASSIVE mortgage against the house....and that adds complexity to this case, but your best bet would be to sell it, with her consent.
This is some really good information! thank you so much, I feel much better now that there may be some hope!

To answer your questions:

1. The cohab length is complicated as well :). Legally married in October, her son moved in start of January, with her belongings, and she was visiting weekly since. Prior I was mostly going to visit her in Toronto. She slowly is starting to make changes to identify this as her primary residence.
2.Good from October - December. End of December its like I am with a whole new person, but still intimate!!!
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Feb 9, 2013
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uahmed wrote: This is some really good information! thank you so much, I feel much better now that there may be some hope!

To answer your questions:

1. The cohab length is complicated as well :). Legally married in October, her son moved in start of January, with her belongings, and she was visiting weekly since. Prior I was mostly going to visit her in Toronto. She slowly is starting to make changes to identify this as her primary residence.
2.Good from October - December. End of December its like I am with a whole new person, but still intimate!!!
Has she changed her address (driver license, bank statements, etc.) to the Ottawa home? It's a stronger case that it becomes a matrimony home if she has, regardless of how often she lived/stayed there. Furthermore, if you are planning to pursue a divorce, staying intimate may not be beneficial to you.
Deal Addict
Nov 10, 2018
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uahmed wrote: This is some really good information! thank you so much, I feel much better now that there may be some hope!




To answer your questions:

1. The cohab length is complicated as well :). Legally married in October, her son moved in start of January, with her belongings, and she was visiting weekly since. Prior I was mostly going to visit her in Toronto. She slowly is starting to make changes to identify this as her primary residence.
2.Good from October - December. End of December its like I am with a whole new person, but still intimate!!!
Thanks for the update.

1) Prior to marriage, (sorry again), I'm going to operate under the presumption that you two were living apart given your statement that "she was visiting weekly since". Try and be able to prove this. (gas receipts, mileage log, anything. This may become important) Time of marriage is one factor, but if you two lived together prior to marriage, then that is a factor too.
2) Stop being intimate if you're serious about this divorce. It may be a factor here depending on how you answer #1. (the one above!)
3) Do everything in your power to stop her from identifying your home as her primary residence. Even if you successfully do this it doesn't guarantee that the home is not considered matrimonial, but it may help. (A lot).
jdu0ng wrote: Has she changed her address (driver license, bank statements, etc.) to the Ottawa home? It's a stronger case that it becomes a matrimony home if she has, regardless of how often she lived/stayed there. Furthermore, if you are planning to pursue a divorce, staying intimate may not be beneficial to you.
Yes, certainly a great question to ask. While changing her address on her license/bank statement may be important, and even if she has not, it doesn't nullify any pleadings that she/her counsel may have indicating that the home you live in is considered the matrimonial home as per the Ontario FLA because all she has to prove is that she has an interest, but several headaches are alleviated if she has not identified the alleged matrimonial home as her primary residence.
For legal topics and discussions, the opinion, guidance, and thoughts provided are my own and are not considered to be legal advice, in any manner.
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Dec 27, 2009
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uahmed wrote: I know - not the smartest move. But due to family pressure (also due to cultural pressure) and my 4 year old son asking for a new mama, I was open to meeting new people. We really hit it off, and not to butcher the whole relationship, when times are good, we are really good. But during the bad days, I feel like there is nothing I can do or say that will please her, no matter for how long I try. Maybe I was just lucky before and didn't have to deal with this type of behavior, but it honestly feels like emotional abuse.
You haven't even been together for 10 months yet - hardly long enough to be saying "when times are good, we are really good" lol. This should still be rose coloured glasses time. If you are already getting along lousy after such a short time that is a full blown disaster. Why did you think it was a good idea to let a grieving 4 year old influence such a major life decision? At least this is still early stage, and not likely to cost you a whole lot (as if you had been together for years). Good luck, and stop rushing into major life decisions.

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