Asset Recovery Specialist




NOTICE TO READER


The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Veena Pohani.

Asset Recovery Specialist:

The matrimonial home is a special piece of property that is treated differently by the Family Law Act due to the fact that the home is where the family resides. The spouse who is not on title to the property, or in other words, is not the legally registered owner must claim a constructive/resulting trust on the property in order to assert his/her claim over the value of the property on the date of separation.

The value of property is generally defined as the value of the asset less any encumbrances on it. In other words, the net cost to purchase to the property is the value ascribed to the property.

The value of the property will be valued on the date the parties agree is the date of separation. This is known as the valuation date.

If both parents are title holders of the property, and own it as joint tenants or tenants in common, each property is entitled to the value of the property the date it is disposed of and not on the date of separation. A party that is not the legal owner of a matrimonial home is only entitled to the growth of the value of the home from the date of marriage until the date of separation. If a party is not on title, that party cannot claim ownership without making a constructive/resulting trust argument based on contribution to the home, or acquisition of the property.

Common law couples generally have to make a constructive/resulting trust argument in order to seek the value of the growth of the matrimonial home. The length of what constitutes a common law couple is generally three years of cohabitation, however, there are unique factors to each case that can be applied to argue that a common law status should be granted if cohabitation is less than three years. Factors such as the birth of children, blended families residing together, sharing and blending of assets are strong and compelling factors to motivate the courts to grant a common law status when the couple have been residing together for less than three years.