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Copperlaw
Copperlaw, Lawyer
Category: Canada Family Law
Satisfied Customers: 2012
Experience:  Barrister and Solicitor Retired cop Crisis Negotiator Drug Expert
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My husband and I separated two years ago after a 30+ year marriage.

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My husband and I separated two years ago after a 30+ year marriage. I believe I understand the bare bones of the law, which is that I am entitled to half of our joint assets to the time of our separation. The situation is complicated - morally, if not legally - by the fact that he holds POA for his sister, who is mentally challenged, and wealthy (living in Florida). We always accessed this money (her savings) from time to time, sometimes substantially,during our marriage, and he continues to be able to, though of late he is not doing this, in the interests - i believe - of cementing the fiction that this money is not his. The bulk of her money is held in an irrevocable trust, and after her death he will receive the interest from it (around 4-5K/month) and after HIS death, it will be dispersed to his children (2 from a previous, short marriage, and 2 of ours). The terms were created long ago by his mother, before I appeared on the scene. To remedy the fact that I was bypassed in all this (and to improve her living situation) we took money out of the trust to buy his sister a house, which I found and renovated for her and moved her into and etc. This house was to be left to my husband, and after his death (he is 13 years older than me) to me. The idea was that my receiving the house upon his death would make up for the fact that the trust bypassed me (before his death I would be getting the benefit of the 4-5K interest/month). Now that we have separated, he is telling me that all I will get is half of our current assets, which isn't enough for me to live on. Can I fight this or not? I might add that over our long marriage, I provided enormous service to his family - raising his two kids for 6 years before I had mine, beginning in my early 20s, and more recently, providing enormous amounts of care to his sister, living with her after our separation for a time, putting in place and managing her care, managing her household and finances, taking her to endless doctor's appointments, liaising with her doctors and on and on. I cannot appeal directly to her because this would not be kosher because she is mentally challenged (though not enough to have ever been declared incompetent). She would never go against his wishes anyway, I highly doubt. While I have been supplying her care since our separation, he is now trying to push me out of this role entirely, I believe because he is afraid that it bolsters my claim to some part of this money. Can you help?
Submitted: 1 year ago.
Category: Canada Family Law
Expert:  Copperlaw replied 1 year ago.
Good day, I would be happy to provide you with some information regarding your situation.
Upon the breakdown of a marriage, you would be entitled to equal division of the matrimonial property, whether in your name or not.
The issue here however is that while he has POA, these monies are in fact the property of his sister, so this would not be calculated into the matrimonial property for the purposes of division of property. My other concern is that a POA is obligated to provide a full accounting of all transactions made on the grantor's accounts and while a POA is entitled to take a small payment for their services on an annual basis (based upon the value of property being managed) they are not permitted to use the accounts as their own, for their own means. This could constitute fraud if it were pursued and your husband could find himself in some hot water.
So these monies would not be subject to division, nor would you have any entitlement to any inheritance he were to receive, as this would be an excluded item under matrimonial law.
However, dependent upon your incomes and any difference between them, you would be entitled to Spousal Support for a very long time, if not indefinitely, based upon the length of your marriage. Accordingly, any income he receives, including any interest payments, would be split with you for support purposes.
I commend you for the efforts you have made and the commitment you have given to his sister. This certainly speaks to your character, however unfortunately, it would not grant you any entitlement to her funds, even with him as POA.
The permitted division of assets and the legislated Spousal Support would be what you are entitled to. Depending upon his income and with the addition of any interest payments, this could provide you with a very comfortable monthly support payment on top of the assets you acquire from the marriage.
I look forward to hearing back from you so that I may ensure that you get all of the information you require.
Also, please take a moment to leave me a positive rating.
Jim

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