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In 2012, my husband and the father of our four children deserted us and left Canada to his home town in JORDAN-AMMAN. Since then he never supported us financially in any way or shape. He married someone else and never looked back to us.

My question is this. In 2015 I have to renew my mortgage and I submitted a request to the court of OTTAWA via a Lawyer to remove my Ex-husband name from the Mortgage document since he is not living with us, and the Judge gave me the permission to renew my Mortgage with only my signature.

Now, how do I take his name totally form our matrimonial residence and claim total ownership of my house? I have been paying my mortgage by myself since he left and now my house is fully paid, however, his name is still in the deeds and in all the utility bills as well. I have no intention to sell my house nor to relocate, but still, I need to sort this out for good and claims my full rights to my house.

I do have the court order and all bank documents to prove all the payment of my Mortgage as well as Utility bills.

Thank you so much in advance for your time and effort for any guidance or advice that may help me sort this issue for good and go on with my life.

Kind Regards Lobna Ayari

  • It seems that you would need to divorce him and have the court award you the house. His having split and you having paid for the upkeep and mortgage should help. It sounds complicated and you need to speak with a divorce lawyer in your province . See the answer to this Q for a discussion of abandonment, even though the Q was that the one who left wanted the divorce. related: law.stackexchange.com/questions/23717/… (Note: I am not a lawyer and not Canadian.) – Damila Feb 27 at 20:00
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    @Damila That is an answer to the question rather than a comment. Can I suggest you repost it as an answer? – Paul Johnson Mar 30 at 10:28
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The Language Of The Court Order Is The Only Relevant Fact

Your payment of the mortgage and utilities is only relevant for purposes of convincing a new bank you are obtaining a new mortgage with that you have the ability to pay (or to helping the judge decide what to do back in 2015). This documentation is irrelevant for purposes of what you are allowed to do legally if the judge has already entered a court order in the case.

The Court order alone should determine your legal rights.

What Did The Court Order Say?

It is less than clear what the court ordered from your question, and your question indicates that you don't really understand the court's order and you need someone who can understand it to read it.

You state:

In 2015 I have to renew my mortgage and I submitted a request to the court of OTTAWA via a Lawyer to remove my Ex-husband name from the Mortgage document since he is not living with us, and the Judge gave me the permission to renew my Mortgage with only my signature.

If you really had to renew your mortgage in 2015, and it is now 2019, it is unclear what happened in the meantime. It sounds like the court order was from 2015, and maybe you made a request to the judge knowing that you would have to renew your mortgage in the future even though you didn't actually have to renew it immediately, or maybe you were required to renew your mortgage in 2015 but the lender is being generous and has waived its requirement that you refinance the loan immediately.

It is also not clear what kind of case the judge entered his order in?

What it is a divorce case or a legal separation case? A divorce case is a request to a judge to end a marriage. A legal separation case is a request to a judge to divide the property of a married couple and to enter orders related to alimony, child support and child custody, without ending the marriage.

Also, it isn't clear if this order was a final order resolving the rights of the parties in a divorce case or legal separation case, or if it was a preliminary order in a divorce case or legal separation case that was not concluded with a final permanent order.

I could also imagine that this order came in some other kind of case entirely related to management of the house in particular, as opposed to a divorce case or legal separation case.

There are a couple of different things that the order that you have described could mean, and your question suggests that you aren't clear about what it said, or at least, have a hard time articulating what the judge said in English (which may not be your first language).

Did The Court Award You The House?

One possibility is that the judge awarded the house, and that as a result you have the right to pay off the current mortgage by taking out a new mortgage in your name only. If the court awarded you the house, it might actually require you to refinance the house, either eventually, or by some deadline, or immediately upon putting the house in hour name.

If So, Did The Court Award You The House By Ordering Your Husband To Transfer It To You?

If this is the case the court is more likely to have entered an order requiring your husband to sign a deed transferring the house to your name and he hasn't done it, and in that case, you have to go to the court again and would typically get an order directing the clerk of the court to sign a deed on behalf of your husband transferring the house to you, after which you would be the sole owner of the house, and then you would refinance the house just like anyone else who was the sole owner of the house (and might even be required by the court order to do that).

This is the most likely possibility.

If So, Did The Court Enter A Decree Stating That You Own The House?

If is less likely, but possible, in this case, that in 2015, the court entered a "decree" declaring that you own 100% of the house and not requiring your husband to sign anything. In that case, you simply need to file a certified copy of the court order in the real property records of the place where the house is located and that will transfer the house to your name retroactive to the date of the court order. Then, you would refinance the house just like anyone else who was the sole owner of the house (and might even be required by the court order to do that).

Did The Court Not Award You The House, And Merely Give You Authority To Refinance The House By Signing On Behalf Of Your Husband?

Another possibility is that the judge gave judge a court order that is the equivalent of a power of attorney, giving you the authority of sign mortgage refinancing papers on behalf of your husband. In this possibility, he remains a co-owner of the house, but you can go to a bank and sign on behalf of both him and yourself to bind both him and yourself to a new mortgage, if a bank would be willing to do so. And, quite frankly, without his cooperation and income information, many banks would not be willing to refinance the house. This is not because you don't have the legal authority to do so, but because the original mortgage was no doubt based upon the capacity of both of you to earn income to pay the mortgage and you alone might not have the same ability to pay the mortgage.

Also if the court did not award you the house in 2015, perhaps because it was only a preliminary order and there has not been a final property division in a divorce case, you could probably go to the court and ask that you have permission to transfer the house into your name now, either as part of a final property division, or as a punishment for you husband for failing to pay any alimony or child support and failing to follow previous orders of the Canadian divorce court.

What Seems More Likely For The Court To Have Done?

Without reading the court's order, or getting a more clear description of what it says, it is not possible to know what your rights actually are in this situation, and any of the orders discussed above is a plausible one that a divorce judge in Ottawa, Canada could enter.

For what it is worth, it is also not entirely clear if the judge's order was a preliminary ruling in a divorce case that is still pending, or a preliminary or final ruling in a legal separation case not intended to end the marriage, or is a permanent order in a divorce case. A permanent order in a divorce case or legal separation case would be more likely to have awarded the house to you entirely than a preliminary order in a divorce or legal separation case. A permanent order in a divorce case would be more likely to award you the house than it would be to simply allow you to refinance it, but it depends upon what the court gave you.

A Footnote Re Choice Of Law In Divorce Cases Between Canada And Jordan

The general rule in divorce cases is that a court only has to have jurisdiction over the husband or over the wife to end a marriage, and that a marriage can be valid for the purposes of one country's laws without being valid for the purposes of another country's laws.

But, generally speaking, if a divorce court has jurisdiction over both spouses, it will apply its own law to handle property division issues, and if there is conflict between the laws of two countries that have jurisdiction over a divorce with respect to property division of real estate, the laws of the country where the real estate is located will be applied. Thus, Canadian laws governing property division in a divorce or legal separation will apply to a house located in Canada.

Also, while conflict of law issues in divorces have existed, in theory, for as long as Canada has been a country (in very early Canadian history, it was possible to be divorce in Jordan but was not possible to be divorced without special laws passed on a couple by couple basis in Canada), these issues didn't come up very often until very recently because there was much less immigration to Canada from countries that recognized polygamous marriage or that have divorce laws that were very different from those of Canada, although, of course, there have always been minor differences.

Under Jordanian law, your husband could marry a new spouse without divorcing you (although it is also possible that he divorced you under Jordanian law), while under Canadian law, your husband would not be permitted to marry a new spouse without divorce you.

If you are in Canada and he is in Jordan, it isn't entirely clear to me whether Canadian law would treat his new marriage as a valid one for Canadian law purposes.

But, while these is an interesting question that would be relevant to a Canadian divorce, it don't directly resolve the question of what the Canadian judge decided, and whatever the Canadian judge decided would be based on Canadian divorce law regarding property division in divorces and legal separations, and not Jordanian divorce law.

Since the Canadian judge's decision was not appealed in a timely fashion, the Canadian judge's ruling is a definitively ruling of Canadian law even if the husband could have appealed the Canadian judge's ruling at the time.

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You can't until you get a divorce. Unfortunately, even in the circumstances you describe it is likely that he will have some entitlement to the house. In all likelihood you will need to buy him out - you may be able to offset amounts that he should have paid in child support against this.

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