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Law Maven
Law Maven, Lawyer
Category: Canada Law
Satisfied Customers: 164
Experience:  Lawyer & Instructor at Algonquin Careers Academy
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I have been married since 1980 , i inherited property from

Customer Question

I have been married since 1980 , i inherited property from my parents overseasalong with my siblings in equal shares , in 2001 , i am going through separation presently , is my spouse entitled to any part of this property or any gains on it since receiving it , knowing that clearly there has been no common money used to any part of this inheritance?
Submitted: 2 years ago.
Category: Canada Law
Expert:  Law Maven replied 2 years ago.
Hello – my name is***** am a Canadian lawyer, and I’ll be happy to help with your question today, but I need a bit more information to be able to give you an accurate answer. It is unlikely that your spouse would have an entitlement to the inheritance, but it depends in part on the wording of the will. It is possible for someone drafting a will to specifically exclude the inheritance from the family property of the person who receives it. With that wording, and as long as you did not invest money from the inheritance into the Matrimonial Home, the property is safe. Do you still have access to a copy of the will? And, was anything you inherited used, in Canada, to pay down your mortgage or purchase property? Let me know, please, and I can expand more clearly on this answer.
Customer: replied 2 years ago.
There was no will. All properties inherited was distributed equally between my siblings and I. As I mentioned no money's from the marriage was used for any part of the inheritance or vise versa. Her lawyer is claiming that she is entitled to 50% of the gains on the value. The property is in a country that has no treaties with Canada at all. To make it clear, my inquiry is not about the property itself, I know she would not be entitled to any of it, their claim is on the increase in value from 2001 to 2014. Thanks
Customer: replied 2 years ago.
A reference to the FLA would be great, if she would be entitled.
Customer: replied 2 years ago.
Very strange, you guys have already withdrawn the balance of 47. $. While I am not yet satisfied with the answer... Please clarify otherwise I would disclaim that charge.
Customer: replied 2 years ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Law Maven replied 2 years ago.
The legal information you're asking for is as follows: Part I of the Family Law Act, RSO 1990, c F.3, <http://canlii.ca/t/529dh> deals with division of family property, and starts by defining what is or is not considered family property. Section four deals with property that is excluded from consideration as family property: s. 4.(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property. So, essentially, the inheritance itself is not part of family property that has to be divided. But unless there is some evidence that your parents specifically stated that they did not want your spouse (or generally any of their children's spouses) to share in the increase in value of the inheritance, then it does need to be considered as part of your net family property that is to be divided with your ex spouse. The fact that it is not easy to calculate the increase in value is something to bring up in Court, ideally at a case conference. If you're going to have to pay to hire someone to assess the value of the property, that cost of assessment should be something that the Court could order subtracted from your net family property ... or could even possibly order the other side to help you pay. The reason I asked about a will is that having a will that says "no proceeds, interest, or income generated by this gift is to form part of the recipient's Net Family Property" is the easiest way to prove the intention of you parents. Without something like that, intention can be very difficult to prove, especially if you would first need to show that they actually knew enough about the law in Ontario to make the decision. In many ways the law would be more fair if it required the person writing the will to specifically include their children's spouses rather than excluding them, then the default if the parents don't know the law would be that the child would retain the full amount and any subsequent increase. Unfortunately, that is not the way the FLA is drafted. I am more than willing to continue to provide information in writing, however, I'm sorry I cannot take a phone call through Just Answer, we are not allowed to use Just Answer to obtain clients for our private practice, and at the same time, the only way I could speak with you directly would be if I were treating you as a client of mine and giving you legal advice rather than legal information. I hope I have fully answered your question, but please do not hesitate to ask for more information if needed. When you are satisfied with the answer, kindly provide me a positive rating so I can receive credit for my answer. My answer here contains only general legal information and not legal advice. No solicitor/client relationship has been created by this communication.

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