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Posts from the ‘Transfer of Property’ Category

Transfer of Property in Ontario Separation or Divorce – video

 

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, Rita explains how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

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, click here.

Transfer of Property in Ontario Separation or Divorce – video


 

Wednesday’s Video: Transfer of Property in Ontario Separation or Divorce 

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video we examine how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

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 our main site.

Transfer of Property in Ontario During a Separation or Divorce – video

 

 

Wednesday’s Video Clip: Transfer of Property in Ontario During a Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video we examine how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

Transfer of Property in Ontario Separation or Divorce – video

 

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, we explain how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

Did These Separated Spouses Intend to Change Title to their Matrimonial Home?

consent

Did These Separated Spouses Intend to Change Title to their Matrimonial Home?

The question in a recent Ontario case called Hansen Estate v. Hansen was whether the husband and wife had engaged in a “course of dealing” that established that their joint tenancy in the matrimonial home was severed, so that they became tenants-in-common. (And the question of whether the husband’s daughters could inherit his share of the matrimonial home hung in the balance).

The two spouses owned the matrimonial home as joint tenants: this meant that if either of them died, the other would obtain the right to exclusively own the home – a concept known as the “right of survivorship” under the law of joint tenancy.

On the date of the husband’s death, however, he and his wife were legally separated, and were in the process of dividing up their matrimonial assets. His Will, which had been drawn up slightly before his death, provided that his entire estate would be left to his four daughters from a previous marriage.

The problem was that his estate consisting mainly of the matrimonial home, the entirety of which the wife would inherit through her right of survivorship. (In law, the right of survivorship takes precedence over any disposition in a joint tenant’s will).

Two of the daughters went to court to claim that although title to the matrimonial home was jointly held, the conduct by the now-separated husband and wife immediately before his death showed that they intended to sever that joint tenancy and create a tenancy in common instead. This would mean that, under the law relating to that style of title ownership, one-half of the matrimonial home would become part of the estate and available to be distributed under the Will.

The Ontario Court of Appeal agreed with the daughters. It said the “time-honoured test” for determining whether a joint tenancy was intended to be severed was to see whether there was a “course of dealing to intimate that the interests of the parties were mutually treated as constituting a tenancy in common.”

In this case, the conduct the Court cited to support a mutual change to a tenancy in common included:

• The wife moving out of the home and rented accommodation elsewhere,

• The husband taking over payment of the expenses, and his putting the bills in his own name,

• The locks being changed on the home,

• The husband making a new will that named his children (rather than the wife) as beneficiaries (and the matrimonial home was his only significant asset),

• The husband and wife closing their joint bank accounts, and each opening a separate account,

• Both of them retaining their own lawyers,

• Both of them agreeing to exchange financial information to carry out their property division.

The wife had also offered that the husband could “buy out” her interest in the home; the husband did not object to her suggestion that it would otherwise need to be sold.

Here, there admittedly was no explicit agreement between the husband and wife at separation to sever the joint tenancy. However, in light of the course of dealing between the spouses – and taking into account the matrimonial context – there was evidence that this was what they intended.

Therefore, rather than the full ownership going to the wife, the court ruled that one-half of the interest in the matrimonial home was part of the husband’s estate, and available to the daughters as beneficiaries.

What is the lesson to be learned? If separated spouses truly intend to sever their joint tenancy, they may want to enter into an interim agreement to this effect. Alternatively, they may want to change the manner in which they hold title: they can arrange for a registered transfer to themselves, but as tenants in common rather than joint tenants.

Similarly, future spouses who are considering getting married may want to enter into a cohabitation agreement which includes a provision that if the relationship breaks down, title held jointly is automatically severed.

For the full text of the decision, see:

Hansen Estate v. Hansen, 2012 ONCA 112  http://canlii.ca/t/fq6xz

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.

Divorcing? Think About Necessary Changes to Insurance

insurance

Divorcing? Think About Necessary Changes to Insurance

Although it’s usually the “bigger picture” items between divorcing spouses that garner most of the focus, there are many smaller details that must be attended to as well. Many of these can be easily overlooked.

For example, parties who are in the process of divorcing should review their existing arrangements in connection with their various insurance policies, in order to update the information on record with the insurer, to change/add new insurance, and to change beneficiaries as needed. This applies to many different types of insurance, such as automobile insurance, homeowner’s or tenant’s insurance, life insurance, and group benefits through employment.

The most obvious among these relates to existing homeowner’s insurance on the former matrimonial home; if that home has been sold then the ex-spouses will have to obtain separate coverage for their respective new residences. This may involve obtaining tenant’s insurance if a former spouse’s post-divorce accommodation is a rental.

Changes to automobile insurance policies will likewise be required. Individual insurance may have to be arranged, and any young drivers must be added to the policies of the parents with whom they live after divorce. If the parents share custody and their children have access to both parents’ vehicles, then consideration should be given to adding these young drivers to both policies.

Comparatively speaking, life insurance may not have to be altered to any great extent, other than to change the beneficiary designation from the former spouse. (However, where one ex-spouse is paying support to the other, it may be wise to keep the recipient ex-spouse as the designated beneficiary to that the funds become available to him or her for support purposes, in the case of the death of the insured ex-spouse). Employment-related group health or dental coverage may also have to be updated post-divorce to reflect the fact that legally the insured no longer has a spouse who is eligible for such benefits.

With that said, it is important to know that if the spouses are merely separated (i.e. have not yet divorced) then making the necessary changes to a joint policy can involve an added consideration: they must both consent to it. For example, if both separated spouses are “named insureds” on a policy of insurance, then the policy cannot be cancelled or changed, nor can one separated spouse be removed, unless the consent of both parties has been obtained.

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 http://www.russellalexander.com/practice/ontario-divorce/

 

 

 

We’re Officially Separated – Can I Change the Locks on the House?

lock

We’re Officially Separated – Can I Change the Locks on the House?

When a couple first separates under contentious circumstances, I will often get questions about what each party’s respective rights are in the early stages, i.e. before the long process has started of formally dividing up their assets and dealing with any support and child-related issues. One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.

In Ontario, the short answer is: No.

If the now-separated married couple were living in the matrimonial home, and one of them has moved out, neither the Family Law Act nor other legislation entitles the remaining spouse to change the locks. This is because under that legislation the matrimonial home is afforded special status: both spouses are expressly granted an equal right to possession of it. This right of equal possession subsists even after separation unless or until:

1) there has been a separation agreement reached between the parties; or

2) a court order has been granted to establish that one of the spouses is entitled to what is known as “exclusive possession” of the matrimonial home pending a family trial. (And note that once exclusive possession has been granted to one of the spouses, he or she obtains the sole right to live in the home, regardless of who owns legal title.)

Unless one of these mechanisms is in place to override what is otherwise each spouse’s equal right to stay in the home, neither can formally lock out the other. In fact, both spouses will have a right to actually live in the home until a resolution on possession of the home is reached. For obvious reasons, however, this is usually untenable because most separations occur under very high-conflict, emotional-charged circumstances.

But even if one spouse has moved out, he or she is not entitled to come-and-go at will. Rather, there must be adequate and reasonable notice given of any intention to return, for example to retrieve any personal property that has been left behind. Similarly, if a court order for exclusive possession has been obtained in favour of one spouse, it will usually be a term of that order that the other spouse can periodically re-enter for specific purposes, with notice in advance. In this context the court may also order the locks to be changed, if the circumstances between the parties warrant it.

Finally, it is important to note that the order for “exclusive possession” is merely that; it does not give the remaining spouse the right to sell or dispose of any of the furniture or other belongings until all of the separation and divorce issues, including equalization of net family property, have been fully resolved by a court.

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 http://www.russellalexander.com/practice/family-property-division-and-sharing/

Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?

sale

Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

When the husband and wife separated in 2010, they signed a Separation Agreement to the effect that the husband could say in the matrimonial home until it was sold, but that it had to be sold within a year, with the selling costs to be split between the parties. Subsequently however the husband – despite numerous requests by the wife – had refused to list the house for sale and demonstrated a “militant resistance” to doing so. More to the point, he told her that notwithstanding the Separation Agreement he did not intend to put the home up for sale, but rather planned to keep it for himself. He also said he would destroy all renovations and upgrades to it that they had made since they had purchased it as their matrimonial home.

Indeed, almost two full years later, the house had still not been sold, and the husband was still living in it, even though he had ample time to find new accommodation. In that time, he had been uncooperative with real estate agents, had refused the wife access to the home in order to get it appraised, had refused to pay for his share of the appraisal costs, and had refused to sign a listing agreement. Essentially, by failing to co-operate and refusing to give his consent, he was unilaterally blocking the ability to sell the home.

As a result, the wife was forced to bring a motion to the court for an order dispensing with the husband’s consent to take the necessary steps to list and sell.
(Incidentally, in answer to this motion the husband, who was self-represented, asserted that despite what had been agreed to in the Separation Agreement, he actually wanted to buy out the wife’s interest in the home. He also made lengthy submissions to the court which included evidence that had not been properly tendered from a procedural standpoint. The court nonetheless indulged the husband in hearing those submissions, but ultimately found them immaterial to the issues on the wife’s motion).

In the end, the court allowed the wife’s motion. For one thing, the terms of the Separation Agreement reached between the parties – by which they agreed to sell the home, not have the husband buy out the wife – clearly governed the matter. Next, the Family Law Act clearly allowed a court to authorize a home to be sold if one spouse is unreasonably withholding consent. Here, the husband had acted unreasonably in refusing to co-operate.

The wife was therefore allowed to proceed with the sale of the home without the husband, and at an appraised price set by her agent. The husband’s consent to the process was dispensed with, including eliminating the need for his to sign the listing agreement, as long as the 3.5-percent total commission that had been negotiated by the wife with the agent remained intact. The court further stipulated that the wife would be entitled to arrange showings of the home through the agent as long as she gave the husband 24 hours’ notice by email.

Finally, the husband would be allowed to stay in the home until closing, on one condition: that he co-operated with what was required of him under the order, namely to preserve the home and its contents, and keep it clean and presentable for showings. The court also warned that if the husband failed to comply with all of the terms of the Order, he could expect that the wife would seek an order for exclusive possession and he would potentially face contempt proceedings “which can have a very serious outcome.”

For the full text of the decision, see:

Ivancevic-Berisa v. Berisa 2012 ONSC 4943

http://canlii.ca/t/fsklf

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.

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, Rita, a law clerk with Russell Alexander Family Lawyers, explains how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.