Marlon's name is still on the mortgage of a home he signed over to his ex when they split. They had both racked up significant debt that Marlon hopes to address. What rights does he have to search the home for documents from creditors?
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Q. I have somewhat of a complicated situation regarding my separation and the separation agreement, so I’ll try my best to give you as much information as possible:
February 2004: Partner and I started living together. He had just purchased a townhouse with financial assistance from his mother. I gave him $1,000 to help with any immediate purchases that might be required.
April 2005: Leased a new 2005 Honda CRV with financial assistance from my mother in the amount of $5,000. Car and insurance remained in my name until the separation agreement was signed. As part of that agreement, I signed the CRV over to him as I had inherited my mother’s truck and had no need for a second vehicle.
July to August 2007: We decided to put the townhouse up for sale and purchase a house together. Townhouse was sold at a nice profit, which was used as a down payment on the new house we bought just north of Calgary.
October 2016: I moved out, making the decision to separate permanently.
June 2017: I signed a separation agreement that was drawn up by my ex. I believe he found the agreement template online somewhere and started filling it in. I did not consult a lawyer due to time constraints and my financial situation at the time. I’m quite certain that, for financial reasons, my ex did not seek any legal advice.
When the separation agreement was finally completed, I was asked to come by the house on a certain day and time to read and sign the agreement. Upon my arrival, there were two other people present: a female friend of his (I believe she was there to keep the peace) and a notary public. I had not been made aware that they would be present.
I read the agreement a few times, ensuring it included what I had asked for, which was nothing except for some furnishings for my new place. I signed it and left immediately.
My ex was in the process of trying to find someone to “invest” in the house as he would not qualify for a mortgage on his own. He was not able to find an “investor,” so he asked my if I would keep my name on the mortgage even though my name was removed from the title/deed of the house. My name still remains on the mortgage.
July 2017: Collected what was promised to me and never returned to the house again.
January 2020: Was notified by a mutual friend of ours that my ex had died.
Over the years, I invested a lot of money in the relationship and into the house. As part of the separation agreement, I signed the entire property over to my ex and had my name taken off title. I did this because there was no equity in the home due to the debt we created over the years.
I would like to know—since my name is still on the mortgage—if I have any legal grounds to gain entry into the home again. I’m almost certain there is no will, and no executor was named. My ex’s only living relative is his sister. I want to get inside the home to get a list of all the creditors so I can see if there is some way that the financial part of this situation can be resolved.
A. Thank you for your questions, Marlon. Most of what you are asking me centres on legal advice, and I can only comment on financial advice, so what I am going to do is point out where you you may have some pitfalls so you will know who to contact and what you can hope to accomplish.
To start, since you and your partner where not married, you will have no claims under matrimonial law. The law would see you as common-law, and therefore see you as having actually opted out of any protection that matrimonial law would afford you. Having said that, your questions are mostly property related, and that is not covered under federal legislation. Instead, it is covered under provincial laws.
Since you and your partner lived common-law, this situation would be looked at much like if you and I jointly owned property. In that case, our only legal recourse would be to have a judge rule on who had the actual right to any property.
Your situation becomes even more complicated by two factors. First, any kitchen-table agreement that you may have had drawn up and signed would likely not be seen as valid since you did not have independent legal advice prior to signing.
Second, there is little equity, and mostly debt, at the heart of this issue. So I am not sure what benefit (if any) there would be in pursing anything other than dealing with the financial institution that holds the mortgage on the property. Unfortunately, by agreeing to leave your name on the mortgage liability without the ownership document, you may find yourself in a bit of a bind. I would first recommend you speak with the financial institution that holds the mortgage—and if you find yourself in trouble, don’t hesitate to contact a lawyer to negotiate on your behalf.
Finally, really the best advice I can give you is this: You are much better off paying professionals to help manage a financial situation such as the one you describe. Such financial agreements need to be structured securely in advance and are worth the money to do so. Otherwise, you will find that trying to save money by doing detailed legal work yourself will cost you dearly in the long run.
Debbie Hartzman is a Certified Financial Planner, a Chartered Life Underwriter and Certified Divorce Financial Analyst in Kingston, Ont. She is also the author of “Divorce is not easy, but it can be fair.”