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Answers to pressing questions on Family Law Family Matters by John Syrtash you may receive less than 50 % of the home's value on its sale or in a "buy out." For this reason, many homeowners who marry ensure that a Marriage Con- tract is drafted by a competent family law lawyer and that it is signed by both spouses ideally before such a spouse moves into the home. Such a contract can exclude or limit the rights of this new spouse to a home's value by excluding his or her interest in it under Ontario family law, so long as each spouse has inde- pendent legal advice and has given each other full and frank financial disclosure Rights to the Matrimonial Home and its Possession upon Separation Question: My spouse is not Canadian with no status in this country, but bought our home anyway. What are her rights if we separate, if any? A friend of mine is in the same position, but he never married. What happens if either of us separate? John Syrtash B. A (Hon), LL.B. Answer: The fact that your spouse and your friend's partner are not Cana- dian and have no status is completely irrelevant. They may both have rights to the home in which both partners/spouses reside. However in the absence of a marriage contract, marriage automatically gives a married spouse much greater rights to possession and to an interest in the matrimonial home's equity. If you are married the entire equity in the home in which you both reside on the date of separation, could be automatically divided between you on a 50/50 basis, including its premarital value, even if the home is registered solely in your name. However, the Ontario Court has the power to divide the equity on less than a 50/50 basis if separation took place under five years, particularly if you lived together for a short time, like under one year. Associate But say that on separation your spouse won't leave the house? How do you get her out? The Family Law Act makes it clear that, absent violent behavior, a spouse has an absolute right of possession, i.e. the right to stay in the matrimo- nial home, even if a marriage contract was signed. A spouse cannot waive that right in a Marriage Contract. If you try and avoid this result by registering the home into someone else's name, or in the name of a corporation, then that third party will face capital gains tax consequences. The reason is that only the person owning the home can profit from its sale tax-free under Canada's Income Tax Act. The only possible solution is for both spouses to consent to a Court Order by which he/'she must leave in the event of a separation. The Family Law Act appears only to prohibit waiving rights to possession in Marriage Contracts, not in Court Orders. Secondly, if either spouse is violent the police can charge that person under the Criminal Code and remove him or her from the home. Alterna- tively, a Court can grant the victimized spouse exclusive possession if a spouse is assaulted or has been threatened with violence. Garfin Zeidenberg LLP Family Lawyer & Mediator for 38 years Mr. Syrtash is Senior Family Law Associate to Garfin Zeidenberg LLP celebrating 38 years as a Family Law lawyer this year. Suite 800, 5255 Yonge Street (at Norton) just north of Mel Lastman Square, Civic Centre Subway station, Secondly, the matrimonial home may not always be divided 50/50 on its sale for many other reasons. Much depends on your particular situation, irrespective of whose name the property was registered. You would need to consult a compe tent family law lawyer to calculate the way in which Ontario law calculates all of your wealth, including the value of the home, and then how your net worth compares to your wife's net worth. In many cases where you have accumulated wealth since the marriage and your spouse has accumulated less than you, then Toronto, ON M5G 1E6. John Syrtash can be reached at (416) 642-5410, Cell (416) 886-0359. What happens if partners living together are not married and you own the home solely in your name? The Answer? Read my next column to be published on July 25. Visit www.freemychild.com; www.spousalsupport.com; www.garfinzeidenberg.com Neither Garfin Zeidenberg LLP nor John Syrtash is liable for any consequences arising from anyone's reliance on this material, which is presented as general information and not as a legal opinion Sponsored by the Community for Jewish Culture of B'Nai Brith Canada. Answers to pressing questions on Family Law Family Matters by John Syrtash you may receive less than 50 % of the home's value on its sale or in a "buy out." For this reason, many homeowners who marry ensure that a Marriage Con- tract is drafted by a competent family law lawyer and that it is signed by both spouses ideally before such a spouse moves into the home. Such a contract can exclude or limit the rights of this new spouse to a home's value by excluding his or her interest in it under Ontario family law, so long as each spouse has inde- pendent legal advice and has given each other full and frank financial disclosure Rights to the Matrimonial Home and its Possession upon Separation Question: My spouse is not Canadian with no status in this country, but bought our home anyway. What are her rights if we separate, if any? A friend of mine is in the same position, but he never married. What happens if either of us separate? John Syrtash B. A (Hon), LL.B. Answer: The fact that your spouse and your friend's partner are not Cana- dian and have no status is completely irrelevant. They may both have rights to the home in which both partners/spouses reside. However in the absence of a marriage contract, marriage automatically gives a married spouse much greater rights to possession and to an interest in the matrimonial home's equity. If you are married the entire equity in the home in which you both reside on the date of separation, could be automatically divided between you on a 50/50 basis, including its premarital value, even if the home is registered solely in your name. However, the Ontario Court has the power to divide the equity on less than a 50/50 basis if separation took place under five years, particularly if you lived together for a short time, like under one year. Associate But say that on separation your spouse won't leave the house? How do you get her out? The Family Law Act makes it clear that, absent violent behavior, a spouse has an absolute right of possession, i.e. the right to stay in the matrimo- nial home, even if a marriage contract was signed. A spouse cannot waive that right in a Marriage Contract. If you try and avoid this result by registering the home into someone else's name, or in the name of a corporation, then that third party will face capital gains tax consequences. The reason is that only the person owning the home can profit from its sale tax-free under Canada's Income Tax Act. The only possible solution is for both spouses to consent to a Court Order by which he/'she must leave in the event of a separation. The Family Law Act appears only to prohibit waiving rights to possession in Marriage Contracts, not in Court Orders. Secondly, if either spouse is violent the police can charge that person under the Criminal Code and remove him or her from the home. Alterna- tively, a Court can grant the victimized spouse exclusive possession if a spouse is assaulted or has been threatened with violence. Garfin Zeidenberg LLP Family Lawyer & Mediator for 38 years Mr. Syrtash is Senior Family Law Associate to Garfin Zeidenberg LLP celebrating 38 years as a Family Law lawyer this year. Suite 800, 5255 Yonge Street (at Norton) just north of Mel Lastman Square, Civic Centre Subway station, Secondly, the matrimonial home may not always be divided 50/50 on its sale for many other reasons. Much depends on your particular situation, irrespective of whose name the property was registered. You would need to consult a compe tent family law lawyer to calculate the way in which Ontario law calculates all of your wealth, including the value of the home, and then how your net worth compares to your wife's net worth. In many cases where you have accumulated wealth since the marriage and your spouse has accumulated less than you, then Toronto, ON M5G 1E6. John Syrtash can be reached at (416) 642-5410, Cell (416) 886-0359. What happens if partners living together are not married and you own the home solely in your name? The Answer? Read my next column to be published on July 25. Visit www.freemychild.com; www.spousalsupport.com; www.garfinzeidenberg.com Neither Garfin Zeidenberg LLP nor John Syrtash is liable for any consequences arising from anyone's reliance on this material, which is presented as general information and not as a legal opinion Sponsored by the Community for Jewish Culture of B'Nai Brith Canada.