Trust and Property Division

Trust and Property Division

Trust and Property Division

John Schuman, Toronto Family Law lawyer at Devry Smith Frank LLP, was asked this question just recently: “How do I go about getting money from the matrimonial home I lived in for 15 years and helped pay for renovations? The home is owned by my father-in-law. I am maxed out financially from getting the separation and pension division done. My ex lives in the home for free, while I barely get by paying rent and expenses over $1000 a month?”

This is a legally complicated question.  A lot of the answer depends on some very specific facts. You really should see a lawyer to go over how the law applies to your situation.

If you contributed more to the house than you would have paid in rent, then you can make a claim in "equity" to have an interest in that house.  This is a really complex claim; you can't do it without a lawyer.  It is not technically a family law claim, but a claim brought pursuant the principles of equity, which are not technically law, but arose from the courts of equity in England centuries ago... See, it really is difficult.  But the just of it is, if everyone allowed you to treat the house as if you owned part of it, and you contributed to it as if you did own it, a court can make a declaration that you are a part owner of the house.  Alternatively, the court may find that you should be paid for the work you did on the house if you do not get to continue to enjoy the benefits of that work.  In both cases, the court will deduct what you should have paid for rent to live there from the calculation of how much you are entitled to receive.

Another alternative is that if your ex's family treated the house as if actually belonged to your ex, in terms of who paid for its upkeep, no rent requirement, allowing your ex to renovate or change the house without permission, etc., then you might be able to convince the court that your ex's family was actually holding the property in trust for your ex, that your ex is the real owner, and therefore the property should be included in your ex's net family property for the purposes of determining the appropriate equalization payment. (If you need an explanation as to how property is divided after a marriage breakdown in Ontario, listen to this podcast.)

Your financial circumstances, and especially the fact that the property division has worked an unfairness, may impact on what the appropriate spousal support should be, and who pays it.  For more on spousal support, watch this video. Or, listen to this podcast. Both of these claims can be really tricky, so speak to a lawyer.

Claims in equity are explained more in this $20 easy-to-understand book about Ontario Family Law. It explains a lot of other important family law principles, explains court and the alternatives to court, and even gives some strategies as well.

For more information on this topic or any other Family Law related question, please contact Toronto family lawyer John Schuman at 416-446-5080.