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Does he have any right to a new property purchase?

Anonymous Asked:

My sister's husband left her and her child more than 7 years ago and has not been since and has not made any payments to the child (who is now 14) My sister and her child have been living in a basement apartment (my sister only makes min wage) since but now my parents want to buy them a condo. But my parents are worried that the husband could come back one day and try to assert rights on the condo since they are technically married. Does he have any right to a new property purchase? Can he do that after all these years?

Expert Comment:

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I first wish to comment that regardless of whether the husband is seeing the child your sister is entitled to child support pursuant to the Child Support Guidelines. These guidelines are mandatory. It is also possible to seek retroactive child support. Thus, your sister should consider whether she wishes to pursue the child support issue. Now that the child is 14, generally speaking, any claim by the father for access to the child would be in the child’s discretion.

In terms of your question about the purchase of a condominium, legally married persons are entitled to an equalization of net family property pursuant to the Family Law Act. That means that you calculate the parties’ assets and debts on both the date of marriage and the date of separation. Assets acquired after the date of separation are not included within those calculations. As a matter of theory, if your sister owes an equalization payment to her husband then if she cannot pay it he could seek to recover it from the condominium that she now owns. However, based on the facts that you have provided it would appear unlikely (although I cannot say for sure without speaking with your sister) that she would owe an equalization payment. Thus, on a tentative basis I can state that there should be no risk to your sister if your parents purchase a condominium for her. However, in order to provide a definitive answer I invite your sister to telephone me at 866-557-3222 for a free consultation.

Please also note that there is a limitation period for the making of the aforesaid equalization claim, namely 6 years from the date of separation or 2 years from the date of divorce, whichever comes first. I can discuss this with your sister if she calls me.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact Andrew Kania for a free consultation).

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