Sale of houses or other tricky property issues after separation
Sale of houses
After a couple separates, the issue can arise of what to do with their house (or houses).
Some separating couples will simply agree to sell the property and split the net equity in half if they were joint owners. Getting such an agreement in a separation agreement is well worth a couple of thousand dollars in lawyer’s fees. In most cases, it is much less expensive to agree to sell a house than to have to go to court to force a sale, which might require multiple court appearances.
In today’s housing market, the timing of a sale and how one is to deal with the net proceeds of sale can often be worth hundreds of thousands of dollars.
At separation, the parties will often not agree to sell a home, even if it is not jointly held. If the home is the matrimonial home, the Family Law Act provides a right to prevent the sale, whether or not the house is jointly-owned.
Under Part II of The Family Law Act, which applies to married couples, both spouses have a right to occupy the matrimonial home and to oppose its “alienation”. In other words, either spouse may oppose the sale of the matrimonial home. If a property is jointly held, or of it is the “matrimonial home” the parties must agree to sell it or you will need a court order. A “matrimonial home” is defined in section 18 of the Family Law Act as:
18. MATRIMONIAL HOME
- Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
When parties disagree about whether a house they jointly owned, or that they lived in during the marriage, should be sold, it is in their best interests to seek the advice and assistance of family law lawyers who can work out the competing rights.
Guy Hunter has helped parties go to court to force a sale of jointly held properties and matrimonial homes, where one party is not being reasonable. He can help you, too, whether you wish to force a sale or block such a sale.
It is not possible to go through all the potential scenarios that exist when couples separate. If you are separating from your ex and one of you wish to sell or block a sale of a home, contact Mr. Hunter for a free half hour consultation.
Other tricky property issues
When married couples separate, they have a right to equalize net family property.
Pensions
When married couples separate, if either of them has a pension, the increase in its value usually has to be equalized. For example, if during a 15 year marriage one of the parties worked for a municipality and has an OMERS pension for the last 10 years of the marriage, a valuation will need to be done of the pension. Then the dollar value for the pension as an asset can be discovered. Sometimes parties do not have any issues to resolve other than the pension.
If one of the parties has already retired before the separation date in which case, according to s.10.1(5) of the Family Law Act, the pension, if already “in pay”, can not be transferred or is not “divisible”, although some recent case law suggests otherwise.
Also, often the party who has to equalize their pension drags their feet and does not get the pension valued until very late in the litigation. Sometimes you will have to go to court just to get an order to get your ex-spouse to evaluate their pension.
Parties can jointly apply for a pension valuation without going to court by filling out Financial Services Commission of Ontario (FSCO) forms. Guy Hunter can assist with that if requested.
Late applications for property equalization or trust claims
Bringing property issues forward late can also be difficult, but often worth the effort. Usually an application for an equalization of Net Family Property must be made within 6 years of the separation date of the parties or two years of the date of the parties divorce.
If you are later, an application can be made for an extension of time under section 2(8) of the Family Law Act.
Guy Hunter knows the case law under s.2(8) of the Family Law Act (FLA) well, and has experience taking issues of limitation periods to the Ontario Court of Appeal, including for common law spouses.
When every attempt is made to provide helpful information in this website, you may not rely on the information above as legal advice.