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Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

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Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

Broken marriages are often filled with broken promises. And sometimes those broken promises extend well into the separation and divorce process, as was the situation in the recent Ontario case of Dymon v. Bains.

When the spouses decided to split, they continued for a while to live under the same roof, but separate and apart for legal purposes. The wife wanted to stay in the matrimonial home, but the husband refused to move out.

They devised a solution: Under the terms of the separation agreement they had reached, the husband bought a new home for the wife and their children. At the time of the purchase, the home was registered only in the husband’s name, but the agreement was that he merely holding it in trust for the wife, and that he would formally transfer it within 30 days of signing another agreement. This meant that title would then be in their joint names, and the mortgage was also intended to be transferred to both their names.

However, when it came time to make the transfer, the husband refused to take the necessary steps.

As part of the couple’s divorce trial, which included orders relating to spousal and child support and related matters, the court was asked to make a ruling about the reneged-upon house transfer. It reviewed – and dismissed – the purported legal arguments on which the husband relied; the court then had this to say about his sudden reversal:

I find the [husband’s] refusal to comply with [the provision requiring the house transfer] was founded not on any cogent legal principle, but rather was based on his misguided and somewhat callous sentiment towards the [wife], expressed in the respondent’s threatening email to the applicant sent October 22, 2012 … that reads, in part, as follows:

As always, you can do what you want, but rest assured, you (sic) days of support and working the equivalent of 15% the (sic) capacity are gone soon. And, you will never ever own Rivertrace without buying it from me. Your cross examination and my witness affidavits will bring you to your knees. You have felt so entitled, it really is disappointing and insulting I am sure to other women professionals. You are a great special woman. Great role model for [the child] – a professional woman who doesn’t know how to support herself …

In a nutshell: The couple had clearly agreed that the home would be transferred into their joint names. There was absolutely no reason for the husband to go back on this promise. The court therefore ordered the husband to make the transfer, sign all necessary documents, transfer the mortgage to both of their names, pay land transfer tax, feeds, and disbursements, and make certain mortgage payments.

For the full text of the decision, see:

Dymon v. Bains (2013), 2013 ONSC 915  http://canlii.ca/t/fw2xz

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.