Simple Divorce Papers

While the Canada Divorce Act establishes the law concerning divorce in Canada it is provincial legislation that governs the division of property in Canadian divorce cases. The matrimonial home is one of the most significant – if not the most significant – asset that becomes subject to asset division as a result of dissolution of marriage. In many cases, it is the only financial asset that can be used to satisfy the judgment entered by the court.

If you do not have immediate possession of the matrimonial home, you must ensure that your possession of it is not compromised by the time the judge decides your case. There are certain precautionary measures which you can take advantage of to ensure that you will have assets to enforce the judgment against by the time your divorce case is finalized.

A restraining order on the real estate property is one such precautionary measure. If you are concerned that your spouse may sell the matrimonial home without your knowledge, leaving you with no assets to collect against, you can petition the court to impose a restraining order on the property, thereby preventing your spouse from selling it. Given the length of time of some divorce legal proceedings, this is a due concern that you should guard against.

The same applies to any other significant asset, such as an expensive painting or sculpture. A restraining order on the property not only prevents the current asset holder from disposing of it, but also prevents the use of the property as collateral for obtaining loans. With a restraining order on the property in place, your spouse cannot pawn the expensive painting and cannot use equity in your real estate for instance to finance a mortgage on a new home.

Once a judgment is issued by the court, you may then wish to register what is known as a Writ of Execution or a lien on the real property. The Writ of Execution or lien is placed on the title of the real estate property in question to achieve the same objective, which is to prevent the asset holder from transferring its ownership without your knowledge or permission.

There are other mechanisms in place with respect to the transfer of title to real estate which should normally operate to prevent the sale of the matrimonial home By one spouse without the other spouse’s consent, even if the home is only in the name of one spouse. However, in the absence of an acceptable level of trust between you and your soon to be ex-spouse, it may be prudent to take these other steps in order to avoid having to an attempt to sell the home without your permission.

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