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When a couple has come together to live in a condo that the…

Hi there. When a...

Hi there. When a couple has come together to live in a condo that the lady has 95% and the man has 5% and they are living together for 4 years and now wish to separate, can the party pay the other out and remove from mortgage title without the mortgage needing to be changed and a new one opened?

Lawyer's Assistant: To start, can you confirm the state you're in? These matters can differ depending on location.

Ontario Canada

Lawyer's Assistant: How long have they been dealing with this issue? Where do things currently stand?

We are at the juncture of deciding to separate and he go his way back up north and I take the condo - as I pay for everything (his pension is small and all 4 years he only pays his own bills and I cover 100 l% with my pays for all these years.

Lawyer's Assistant: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.

Yes. Please ask the most important question - as a man that has been my fiancée for the past 4 years we are living together, although I secured the condo dwelling by us signing a 95% and 5% agreement on the home (as I have two grown children and he does not), as a couple (they call common law), does he have the right to half of my money (ie, savings, RRSP, TFSA, which are all for my kids and for money to pay the mortgage down from the proceeds we got to buy this condo. This is so important for me to know - my decision tonight is based on knowing if he will take half

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Answered in 5 minutes by:

2/10/2023

Lawyer: Joey, Lawyer replied 3 months ago

Joey, Lawyer

Category: Canada Law

Satisfied Customers: 7,218

Experience: Expert

Verified

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

I am licensed Canadian lawyer, and this conversation is for informational purposes only. I kindly ask for your patience as some questions take longer to answer and I may have to do legal research. I may be away from my desk from time to time, but rest assured I will always return back as soon as possible. If at any point during our conversation you don’t understand something, please let me know so that I can clarify.

Sorry to hear about the legal difficulty. To clarify, is this couple legally married?

Customer reply replied 3 months ago

No - we are just engaged and have been living in Thai condo since July 6, 2022, with an agreement doc that was signed at point of purchase rig our real estate lawyer that ensured that I had 95% of the dwelling, as I pay everything and have 2 grown children he does not (he has a small pension and cover his own expenses) - however, I wanted him to have 5% in the condo.That saidMy deeper question today is about common law lawI can look to buy him out for his 5% share and know that part.

Lawyer: Joey, Lawyer replied 3 months ago

In Ontario, common law couples do not have the same property rights as married couples. Whatever is in your name, remains in your name. Jointly held property would remain jointly held unless one party buys out the other or the court compels the sale of it.

If one party contributed to the assets of another, then they could make a claim for “unjust enrichment” to be reimbursed. This typically arises with the family home when title is one name, but the other party contributed towards the down payment, mortgage and/or renovation costs.

Did you have any additional questions about your legal issue?

Customer reply replied 3 months ago

My real question is to do with what a common law partner has rights to - in that, we sold out other dwelling for a lot of money and I hold the money (which is 95% for me - split between my 2 kids if f I die) and he has his 5%, however, when a split happens in this scenario and he has no savings and I have well over $150k, $40 RRSP and $10k in tfsa - Will he get 50% of my money?It is vital that I know this, as it will be tonight that we either agree to try and save the relationship or separate.

Lawyer: Joey, Lawyer replied 3 months ago

In Ontario, common law couples do not have the same property rights as married couples. Whatever is in your name, remains in your name. Jointly held property would remain jointly held unless one party buys out the other or the court compels the sale of it.

Did you have any additional questions about your legal issue?

Customer reply replied 3 months ago

This response above is a duplicate for my other initial question... here is the second question...My real question is to do with what a common law partner has rights to - in that, we sold out other dwelling for a lot of money and I hold the money (which is 95% for me - split between my 2 kids if f I die) and he has his 5%, however, when a split happens in this scenario and he has no savings and I have well over $150k, $40 RRSP and $10k in tfsa - Will he get 50% of my money?Does the partner have the ability to take 50-% of any money in savings accounts if a common law couple separates please?

Lawyer: Joey, Lawyer replied 3 months ago

My answer remains unchanged. In Ontario, common law couples do not have the same property rights as married couples. Unless he contributed to these investment accounts he has no entitlement to any of it.

Customer reply replied 3 months ago

Loved “My answer remains unchanged. In Ontario, common la…”Last thing please...

Lawyer: Joey, Lawyer replied 3 months ago

Please go ahead.

Customer reply replied 3 months ago

Just to be clear - any savings I have from the sale of our last home, which I was legally the 95% part of that transaction, he had no rights to 50%, as he did not contribute - the sale of that property did, etc.Am I understanding this correctly, as my decision on this separation depends on him not being able to take any money from TFSA nor RRSP nor any accounts I have where I keep money, which he could never contribute, as his pension only covers his costs - truck payment, insurance, etc.I just need to be absolutely sure that he cannot take from my kids money - if we should go through with this.

Lawyer: Joey, Lawyer replied 3 months ago

That is correct. There are no automatic property rights in Ontario for common law couples. Whatever is in your name, remains in your name. He can file a claim against you if he can prove he contributed towards those assets. If he can't, the judge will dismiss his claim.

Did you have any additional questions about your legal issue?

Customer reply replied 3 months ago

Loved “That is correct. There are no automatic property r…”Joel - If I look to pay him out his 5%, of the condo - I would use the total we bought it for correct?

Lawyer: Joey, Lawyer replied 3 months ago

If he owns 5%, then he is owed 5% of the current value.

Customer reply replied 3 months ago

Also, although the 5% would be his, the total of that would not be the full amount I am assuming? I say this, as there are so many bills, like the mortgage, the condo maintenance, the cell phone, etc., and in these 4 years he has had that same pension that I take from to repay my account that everything flushes through and he has not paid a cent towards these
Things, is there a rule j the law books that has a calculation that would take into consideration this fact that I have been paying the 100% for all these bills and would help to lower what he would be owed

Lawyer: Joey, Lawyer replied 3 months ago

If he owns 5%, then he is entitled for 5%. If you want to dispute this, then you too can go to court and present your evidence as to why he is not owed 5%. The legal fees involved may not be worth the time and expense for such a claim.

Customer reply replied 3 months ago

Loved “If he owns 5%, then he is entitled for 5%. If you …”Understood. So basically I have learned that he gets 5% of current market value (which would be around $45k) and unless he added money to my savings account, RRSP or TFSA, he has no rights to that money in these accounts - regardless of the amounts in each correct?

Lawyer: Joey, Lawyer replied 3 months ago

That's correct.

Customer reply replied 3 months ago

Would I have to do a disclosure within the separation agreement of my assets? I don't think so right?I don't need to share with him what money I have correct?

Lawyer: Joey, Lawyer replied 3 months ago

If he sues you for unjust enrichment, then the court will order you to produce all records.

Customer reply replied 3 months ago

If he literally has nothing left after I take what he needs to be pay from the pension account - would he be able to pursue this due thingy

Lawyer: Joey, Lawyer replied 3 months ago

I don't know what he will do or what claims he will make.

Customer reply replied 3 months ago

Liked “I don't know what he will do or what claims he wil…”Does a mortgage have to be broken if I pay him out and he gets removed from title? With the rates the way they are, is there a way I could add to the separation agreement, that he could agree to stay on title for the next three years until it opens, and I can renew with my own name and minus his. Could we put a clause in the separation agreement that actually states that his 5% He will not be charged for it nor liable for it that I will pay for it but he stays on title is that something that can happen?

Lawyer: Joey, Lawyer replied 3 months ago

You'll need the written consent of the lender to have him removed from the mortgage. You are free to make a side agreement as you described to protect your mortgage rate.

Customer reply replied 3 months ago

My dear friend is my mortgage broker, so she will be able to do this. I feel good about that part. I believe I have everything that I need now. You have been an invaluable resource today. It should stay really simple as we don't have much but, as long as my children have money from my account in the future I am happy camper. You are wonderful. Have a nice evening.

Lawyer: Joey, Lawyer replied 3 months ago

My pleasure. Did you have any additional questions about this matter before we end our conversation today?

Customer reply replied 3 months ago

As long as I've understood correctly, that he really is only entitled to the 5% buyout, and then the arrangement of the mortgage and removal of from title, I believe that I'm in good standings, as he really has not contributed to this and he is a decent man, even though we're going through this. So, unless there's something else that I missing that you can think of to warn me about.

Lawyer: Joey, Lawyer replied 3 months ago

We covered it all.

Customer reply replied 3 months ago

Amazing thank you so much you don't know how much this has taken the stress off, as everyone has an opinion, they keep saying you better watch it he could be you know he can take from the savings account 50% 50% and I said I've been through an equalization divorce with many assets, a children oh you name it ours please Disclosures and everything else under the sun so I can now safely say that anything any account at a bank or registered investment that has my name on it and not his stays with me we do have a joint account at Royal Bank. That is what I've been given flushing the money through from the pension. I always let them know that I'm doing it we're in the same room each time so I keep everything very kosher so as long as I can do this 5% thing maybe the condo has gone down from what we bought it, so it'll be to my benefit lol. Have a great night.

Lawyer: Joey, Lawyer replied 3 months ago

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 reply replied 3 months ago

Thank you

Lawyer: Joey, Lawyer replied 3 months ago

You're welcome.

Joey, Lawyer

Category: Canada Law

Satisfied Customers: 7,218

Experience: Expert

Verified

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