My ex currently has a claim in my house (which is purely in my name - purchased using funds I acquired during the

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Customer: My ex currently has a claim in my house (which is purely in my name - purchased using funds I acquired during the marriage).With the litigation it is stopping me from investing as I can't refinance.Does she need to legally do the litigation as I'm not contesting an equalization payment. I would like to be able to ask her to remove it but give her something in writing to put her mind at rest.Thanks
Answered by JosephE322 in 5 mins 1 year ago
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JosephE322
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JosephE322
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JosephE322
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JosephE322, Expert

Hi and thank you for using JustAnswer.  My name is ***** ***** I will be assisting you with your question.

Just a general disclaimer that this conversation is for informational purposes and I am not your lawyer. The information discussed is for general use only and a lawyer would be necessary to take any legal action and/or preserve any of your legal rights. You may receive a phone call request which is automated from this website and you may choose to ignore this request. If at any point during our conversation you would like to have a call, I’d be more than happy to arrange one with you at an additional cost. I may be away from my desk from time to time, but rest assured I will always return back as soon as possible.

Which province are you located in?

Customer
BC
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JosephE322, Expert

Generally speaking, if you wanted to refinance, the lender may ask to see a court order or separation agreement confirming that there won’t be any Family Law Act claim made against the property. If you don’t yet have a separation agreement yet, but are certain that you can pay her any equalization payment, perhaps you can come to some interim agreement which may satisfy the bank. Alternatively, your ex could perhaps have a letter notarized confirming that she is not opposed to you refinancing the property and will not make a family law act claim against the property.

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JosephE322, Expert

Does that help answer your question today?

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JosephE322, Expert

Thank you for using JustAnswer. I wish you the best of luck. If you have any follow up questions about this matter, please do not hesitate to reach out to me.

Customer
Thank you, quick question on the house in joint names. If the ex is able to qualify for the mortgage on the house in joint names, does she still need my permission for a remortgage solely in her name?Can I force the sale without her being able to keep it?
Customer
that equity / cash can come out of the property?
Customer
Also the house I live in she has no possessive rights as she doesn't have her name on the title so in terms or getting my house valued by a realtor - I guess she has no control over it? And will have to accept my realtor of choice?
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JosephE322, Expert

If title is in both names, generally speaking both of you would need to consent if the property was remortgaged. If after some time you cannot come to an agreement as to what to do with the home (either selling it or one person buying out the other), then you can go to court and the court may order the sale of the home.

Customer
Could the court also agree to one person remortgaging it? Would they do that if they don't have a job?
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JosephE322, Expert

The best thing to do is to come to a separation agreement so that if any payment is required to your ex, it can be quickly done on your terms.

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JosephE322, Expert

Otherwise, it could take many months to get a court hearing and some more time to get a decision. Even then, it could be appealed and delays things more.

Customer
If the place that she lives in is valued more than my place, does she have to pay me half of the extra equity in that place?
If both places have same equity then I guess nobody owes each other anything but then if she can't get a mortgage place would have to be sold.
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JosephE322, Expert

You would each calculate your net family property as of the separation date. Anything that happens after that date is irrelevant for the purposes of calculating net family property and any applicable equalization payment.

Customer
equity that has increased since separation date isn't taken into consideration?This seems very problematic. So what about the rise in equity?One is the family home in joint names the other is the rental that I live in, purely in my name.If that helps
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JosephE322, Expert

On the date of separation, each person adds up their assets/liabilities and reduces it by what they brought into the relationship and any inheritances received. Anything that happens beyond the separation date is excluded. If one person owned a rental property on day 1 of the marriage valued at $100,000 and it’s worth $250,000 now, that person would include the full $150,000 gain in their net family property calculation ($250,000 - $100,000).

Customer
Good morning, my ex now has a job but is refusing to tell me the salary or whether it is part time/full time. Additionally we are supposed to appear in court on Tuesday (I wasn't aware) I think it is for meeting with the judge and for us to both discuss / see what can be negotiated.I don't have legal representation currently, now that she has a job she is asking her lawyer if we can adjourn the meeting for 3 months (so she can pass probation period and try and keep the house she has been refusing to sell since Feb 2020) what do you think I should do?
Thanks
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JosephE322, Expert

If you want to move the matter forward without any more delay, then you should not consent to the adjournment. That said, if this job will allow her to buy out your interest in the property (assuming you want to sell it to her), then perhaps it would be a good idea to delay this so she can get approved for a mortgage.

Customer
Do you think I should attend the hearing without legal representation?
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JosephE322, Expert

I always recommend that you have legal representation unless you are comfortable with court procedure and the legal issues in dispute.

Customer
Do I need a lawyer to ask for an adjournal and also can it be less than 3 months? Can I ask for one month? Although I don't think my ex will agree...
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JosephE322, Expert

You don't a lawyer to ask for an adjournment.

Customer
How do I got about asking and in terms of time frames how long can I ask for? Thanks
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JosephE322, Expert

If her lawyer is asking for it and you agree, you just tell the judge that you are agreeable to her adjournment request assuming the hearing is rescheduled by X date.

Customer
But she wants it to be in 3 months time specifically after she has passed her probation period, she won't be interested in a date sooner than that because she knows I currently don't have a lawyer and it will be very difficult to have legal representation for Tuesday so she has all the power
Customer
I'm assuming she legally has to disclose her salary? Not just tell me "it's my business" as I really need/want to know how much her lawyer will go for using the divorce mate calculator.Anything I can say to her to get her to think twice about being a manipulative narc
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JosephE322, Expert

Are you agreeable to three months if it means she can then buy out your interest in the property? If yes, then agree. If not, then tell the judge you are not agreeable and you won't be selling her the property.

Customer
Also can the monthly CS and SS figures take into consideration her current income vs her last 3 tax returns of zero as she has chosen to to work for 11 years
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JosephE322, Expert

You can ask the judge for an order compelling her to disclose her updated employment particulars.

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JosephE322, Expert

You should get legal representation when possible.

Customer
Could I technically return to my home country with the kids whilst we don't have a separation agreement defined/signed?
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JosephE322, Expert

If you leave without permission from your spouse, you could be charged with child abduction.

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JosephE322, Expert

As in leave with the kids.

Customer
Even without a separation agreement? How about me leaving to get the divorce done in a different country as I am being severely screwed here.. also kids are citizens of that country.. were born there
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JosephE322, Expert

If the process was started here it would need to be completed here unless your spouse agrees drop it all together.

Customer
If I were to leave can and lose my pern residency, what legal power does Canada government have over me to do anything about it?
Customer
Permanent residency*
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JosephE322, Expert

Unless you committed some type of crime and they want to extradite you back to Canada, likely nothing,

Customer
Or anything to try and enforce a divorce or anything on me?
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JosephE322, Expert

If there is a court order in Canada, your spouse could have it could be enforced in your home country if your country recognizes that judgment.

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JosephE322, Expert

Happens all the time.

Customer
Apparently NZ isn't on the list of countries that it can be enforced on?
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JosephE322, Expert

You would need to consult with a NZ lawyer about that.

Customer
She also only has perm residency here (thanks to me) so could I return to NZ with kids and say we are here if you want to join us? Would that be a crime? And if so could I be extradited for it?
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JosephE322, Expert

If you don't have permission from your spouse to leave the country with the kids, you could be charged with criminal child abduction and extradited back to Canada to face charges.

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JosephE322, Expert

I’m just stepping away from the computer, but if you had a follow up question I would be more than happy to answer it upon my return later today.

Customer
Thanks could I be extradited over not paying spousal support? If I paid her the difference between CBT against CS support amount only?
Customer
currently CBT is split 50/50 (I get about 700) but CS will be around 1k maybe 1200 all depends on her income. So if she kept all the CBT and I paid say between 300 to 500 to ensure child support is covered.I personally don't think it is fair she gets spousal as she refused to work plus I was paying for daycare. Seems a bleeding joke to me
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JosephE322, Expert

If there is a court order to pay spousal support, she could have that order enforced in NZ.

Customer
But can it only be enforced if NZ is on the list of countries which when I last checked, NZ is not
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JosephE322, Expert

You would need to consult a NZ lawyer for a definitive answer on that.

Customer
With regards ***** ***** matrimonial home that is in joint names, does she need my permission to have someone live there? Rent there or even stay there? As she has implied a "friend" is staying in one of the rooms. Also I don't know who this friend is and how suitable they are around my kids? Although I an assuming this "friend" is possibly worked out a deal to provide her day care now that she has a job
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JosephE322, Expert

If she's on title, she can have guests over unless there is a court order prohibiting her from doing so.

Customer
What about having someone live there? Wouldn't that need my permission?
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JosephE322, Expert

Unless there is a court order in place prohibiting someone else from living there, no. She can have someone move in if she wants.

Customer
what if I decide I will take the room this "friend" is wanting to use? Or if I don't want a person staying in the home I have no say?
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JosephE322, Expert

You can live in your own home unless there is an order granting her exclusive possession of the home.

Customer
Ok the room that this "friend" is staying in is not consider legal, and is a partitioned. Can I remove the wall so it is no longer a room and just connected to the garage
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JosephE322, Expert

It's your property and you can do with it as you please unless there is an order granting her exclusive possession of the home.

Customer
If my kids are being watched by a baby sitter / nanny on the weeks they stay with their mum (whilst she is at work) what rights do I have to visit them, see them ? Particularly if they are at the matrimonial home?
Customer
Also my ex is refusing to disclose her income saying it is none of my business
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JosephE322, Expert

You would have to follow any court order regarding custody. If there isn't one, then you can visit them at the matrimonial home when you want. If she's not disclosing her income, then you should let the court know.

Customer
If there is a court order saying 50/50 surely I can still stay at the home she lives in until the property is divided? She is threatening to call the police because of feeling "threatened" and "harassed" but she can't point to any actual threats of harm. I'm thinking I should call the police?
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JosephE322, Expert

You both can stay in the home until there is a court order granting exclusive possession to one of you.

Customer
What about if she calls the police and says she feels threatened/harrassed
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JosephE322, Expert

She could do that.

Customer
That's what she is threatening but what would happen as I haven't threatened to hurt her
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JosephE322, Expert

It's up the police to investigate and make a decision whether to remove you from the home or not. But until there is an order prohibiting you from going to the home and/or an order for exclusive possession of the home, you can continue to go into your home.

Customer
If the police removed me would I be allowed to return or would that depend on whether she filed for a restraining order? And how easy would it be for her to get one
Customer
Can you get a restraining order against your own home?
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JosephE322, Expert

The restraining order would prohibit you from contacting her and going to the home.

Customer
But how easy would it be for her to get if I haven't threatened to hurt her? Also would it go on my record or be seen as a criminal record / impact my career when getting police checks etc
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JosephE322, Expert

She would have to go to court and ask for one. The court will review the evidence and make a decision.

Customer
Oh wow so in the meantime I could stay at the house?
Customer
How long would it take for a court date?
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JosephE322, Expert

You can stay in your own home until there is a court order to the contrary. Depends on the backlog of cases.

Customer
She also has a friend living there so surely that would mitigate the concern
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