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Protecting Assets
My husband and I have been seperated for 6 months. (Not legally.) I am afraid he is going to find some way to make sure I don't get any money from the family home because my name is not on the title of the house, even though it was bought in the second year of our relationship living commonlaw. We were married the following year and from time to time was our family home. Do I have only a certain amount of time to make a claim on the home? Can he sell it out from me? To another family member, so that it looks like he no longer owns it? (by C of Cyberspace, BC) If you were still living common-law and never married, you would have 2 years from the date of separation within which to bring a claim. Since you married, you can make a claim against the family assets whenever you wish. If you get an order for your divorce and the order doesn't, for some reason, deal with the division of family assets, you must bring your application for an order dealing with the assets within two years of the order for your divorce. Those are the time limits within which you must bring a legal action dealing with the assets. Now, if you are concerned that your husband is going to do something sneaky with the house, the best (and fastest) way to protect your interest in the house is to file something called a "Certificate of Pending Litigation" against the title of the house in the Land Title Office. This is also called a CPL. A CPL will, usually, prevent the property from being sold or mortgaged. In order to file your CPL, you must bring an action against your husband. In your action you must: make a claim for the division of the family assets; make a claim for an interest in the family home; and, you must claim for a CPL against the title of the family home. When you file the Writ of Summons and Statement of Claim, bring the CPL with you. The registry will stamp it with the file number of your action and the seal of the court. You must then file the CPL in the Land Title Office. In the meantime, before you can put the CPL on the family home, nothing is preventing your husband from dumping the property. However, even if he manages to sell the house before you can protect it with a CPL, your husband will still be obliged to pay you out for your interest in the house! Just because he has sold it doesn't mean that your interest in the house - or the proceeds from the sale of the house - vanishes. Finally, you may want to read the provincial Land (Spouse Protection) Act; see the link in the "Legislation" section of my website. You may be able to file a notice of your interest in the property, on a temporary basis, without bring an action. Click here to go to the top of the page. My question is I wanted to transfer some land my family has in which I hold a one fifth undivided interest into a tenants in common status to protect the interests of my son in that under the latter it would go to him, my wife has placed a lis pendens against the title. He is under her custody by court order. Can I get the lis pendens dismissed and does she have any right to the land and house if it came to me by inheritance? (by G of Powell River, BC) Your question is a bit complex. Let me first describe the basic principles. A family asset is any asset which is ordinarily used for a family purpose or intended to be used for a family purpose. A good example of the former is the family car or the family home. An example of the latter is a pension or a plot of vacant land which was intended to be used to build the family home. In these last examples, the pension money and the land was intended to be used for a family purpose at some point in the future, retirement income to benefit the family or to build the family home. Inheritances are, generally speaking, not family assets. They usually fall under the heading of exempt personal property and aren't divided between spouses. Of course, inheritances can *become* a family asset. Say an inheritance was used as the downpayment for the family home. In ten years, while you can still point to the house and say $20,000 of it's value is my inheritance, by using it as the downpayment, it takes on the flavour of a family asset since it was used for a family purpose. So. Your question about the interest you have in the land will depend on whether your family ever used that interest for a family purpose or intended to use it for a family purpose. You've got a good argument that your wife shouldn't be entitled to share in it, but she may have some good arguments of her own. Whether she has a share will depend on how successful you are in characterizing your interest in the property. As to the lis pendens, or the CPL as they are now known, such things are very difficult to remove from the title. In general, only the person who placed the CPL is able to lift it. A court can make an order that it be lifted, but the Land Title Act (which governs these things) has a lot of restrictions that you'll have to meet first. If I remember correctly, CPLs are dealt with somewhere between sections 200 and 225 of the Land Title Act... Now, the CPL may not pose a problem if you want to convert your interest from a joint tenant to a tenant in common, since all a CPL does is signal to the world that "the title to this property may change as a result of litigation." All you're doing is changing the nature of the ownership, not the fact of ownership. As to whether you should do this or not, I strongly recommend that you consult a family law lawyer. I am concerned that your attempt to fiddle with the property could be interpreted by the court as an attempt to wrongfully transfer the title so as to frustrate your wife's interest. If the court makes an adverse finding like this, you could face some very adverse consequences. All things considered, your situation is sufficiently complex that you really ought to see a lawyer. Unfortunately, I can't give you a better or more definitive answer without knowing a lot more about your situation. Click here to go to the top of the page. My friend is in the process of a divorce. To be spiteful her husband has indicated that he plans to sell the car she uses to get to work and transport her children. The car has a loan in his name and is registered in his name only. Can he sell the car before the divorce is finalized? If not what steps could she take to prevent him from doing that? The children live with her and it is her only method of transportation. (by G of Cyberspace, ON) First, you must understand that the laws on family assets are very different here in BC than they are in Ontario. In BC, the car would be considered to be a family asset, regardless of whose name it was registered in. Accordingly, you could get an order restraining the husband from selling it. Whether you can do that in Ontario, I really don't know. In BC it'd be a simple matter of bringing on an application on short notice to stop the sale, especially since the car is your friend's primary mode of transportation and is necessary for the kids. In the worst case scenario, if he did sell the car before she could stop him from doing that, she would still be entitled to compensation for one-half of the car's value, although this won't solve her transportation problem. Click here to go to the top of the page. When my husband and I separated, I signed a form to take my name off of the title to our home since I was the one who was leaving and my husband was "buying" me out. We have since attempted reconciliation and I moved back in. Things are rocky and he is contemplating leaving and divorce this time. Have I given up my right to 50% of the house and property by signing that form when we had first separated? (by L of Abbotsford, BC) First, you can file a notice against the title under the Land (Spouse Protection) Act. A notice under the act will stop your husband from selling the house. You should hire a lawyer to help you with this process, but it is fairly straightforward. Second, you can arrange for a triggering event which will automatically give you ownership of one-half of all family assets as a tenant in common. This is really complex, but the idea is that when a triggering even happens (an order for divorce, the execution of a separation agreement, or a declaration by the court under s. 57 of the Family Relations Act), each spouse is automatically given a one-half interest in all family assets. Have a read of the "Family Assets" section of my website for more information on family assets and triggering events. I suggest that you read through my website a little more to give you an idea of your rights. Since your situation is a bit complex, I especially recommend that you speak to a lawyer in your neighbourhood about your circumstances. You don't have to hire the lawyer, but the meeting will be very helpful to get an idea about your options. Click here to go to the top of the page. My brother and I have owned a house since 1992. We are both on title. My brother continued to reside in the property we own together, and, when he married, he lived there with his wife. He has filed for divorce and she is suing him for part of the house. My brother and I had verbally decided that when we sold the house, I would get 75% because I had contributed much more than him. How can I protect my interest in the property? Can my brother and I do a written agreement now? (by J of Surrey, BC) Okay, you've got a few problems. I'll go over them one by one. First, your brother's wife's interest in the property will be limited to your brother's share in the property. Your basic one-half won't be touched. Second, you are going to have to prove that you had an oral agreement with your brother that you'd have more than half. There's no point in doing a written agreement now, as that'd look very suspect. Don't even think of backdating a new agreement. Evidence that'd help support your claim includes your evidence that you'd have 75% and your brother's evidence that you'd have 75%. You can help prove that you had this agreement by showing that you paid more than he did to the property; gather your bank statements, mortgage statements, cancelled cheques, whatever you've got. Your brother's wife will, of course, do her best to show that you've only got a 50% interest as that increases what she might be entitled to. Third, you probably don't need to take any legal steps about this yourself, beyond making damn sure your brother says in his Statement of Claim or Counterclaim that you are a 75% owner of the property! If he hasn't done that, get him to file a revised Statement of Claim or Counterclaim. Finally, if your brother won't change his pleadings, you may have no choice but to add yourself as a third party to the lawsuit. You'd probably be making a claim against your brother for an order for the partition and sale of the property with the proceeds to be divided 75% in your favour. This will definitely help to secure your interest, and you can file a Certificate of Pending Litigation against the property to ensure that the property won’t be sold until you've got satisfaction. Your brother should understand what you're doing, you're just protecting your interest in the property against his wife. Now all of this is a bit complex. I strongly encourage you meet with a family law lawyer in your neighbourhood to discuss your situation. You could use some proper legal advice. Click here to go to the top of the page. A recent JCC consent order states my wife is at liberty to list for sale a property we both have an interest in but is registered in her name only. She has to discuss and advise me of anything to do with the sale and we have to agree, rather than her having sole conduct of the sale. Can I file a CPL against the property in case she ignores my input and sells? (by G of Vancouver, BC) Well, you're right. A CPL would certainly block the sale. I'd caution you against this, however, for two reasons. First, your motives will be misconstrued and you may be looked at as breaching the consent order. You'll also appear to be obstructionist. Second, you'll incur expenses in getting the CPL put on and then having to apply to have it lifted. If you're worried about her having a fire sale on the house, you can protect yourself somewhat by getting a professional appraisal of the house against which the sale price can be measured. You should be able to get disclosure of the offers that are made. Click here to go to the top of the page. Site Navigation Go back to the Q&A Index. Section Menu
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