Division of family home where children have been added to title

In Gross v. Alexander 2023 ABKB 623, the court dealt with an unequal division of a home that was refinanced to include a daughter and her husband on title.

Mr. Alexander is the father of Brittany Gross, who is married to Bryan Gross. In 2014, Mr. Alexander added the Gross’ to the title to his home after Mr. Alexander requested help re-qualifying for the mortgage.

The parties resided in the home together with the Gross’ children.

Unfortunately, there was a falling out in the family and in October 2021, Brittany Gross obtained an EPO against Mr. Alexander. This forced Mr. Alexander to leave the property and move in with his ex-partner.

In April 2022, the EPO was vacated. In June 2022, Mr. Alexander obtained an order for the home to be sold and for Mr. Alexander to receive the first $50K from the sale of the home.

The house sold for $345,168.02. After discharging the mortgage of $213,765.02 and payment of other fees associated with the sale, the net proceeds totaled $123,301. Mr. Alexander received $50K from the sale and a remaining $73,301 was left in trust with the real estate lawyer.

At trial, the Gross’ argued that the sale proceeds should be divided equally with all parties receiving 33%.

In determining how the sale proceeds should be divided Justice Silver noted the following:

- Under section 17(2) of the Family Property Act, a court must consider whether one co-owner has excluded the other co-owner from access to the property. As the EPO kept Mr. Alexander away from the home for almost six months, this factor weighed in favor of an unequal division in favor of Mr. Alexander

- Under section 17(2)(b), a court must consider whether one of the co-owners was a tenant of the other. The court noted that the Grosses were paying a higher portion of the mortgage, however as the mortgage increased in 2014 the proportion paid by the Grosses was decreasing. This was a neutral factor.

- The Grosses did renovations on the property at their own cost notwithstanding this Justice Silver found that the renovations were a joint effort by all parties. Furthermore, as the Grosses lived in the home six years after the renovations with their two chlidren, there would have been wear and tear. Justice Silver declined to give an unequal division based on home renovations.

- Mr. Alexander lived and owned the home for 20 years prior to the Grosses moving in. The Grosses were on the title for eight years and lived in the home for only five years. This weighed in favor of an unequal division for Mr. Alexander.

- Mr. Alexander had already been forced to pay out for his portion of the home in a prior divorce. This weighed in favor of an unequal division for Mr. Alexander.

- Mr. Alexander was an elderly man with no other assets than the home. This weighed in favor of an unequal division for Mr. Alexander.

- Mr. Alexander had intended to give his other child, a son, money from the home in his inheritance, which Mr. Alexander could no longer do. This weighed in favor of an unequal division for Mr. Alexander.

- Mr. Alexander payed money to prep and clean the house for the sale and was responsible for the outstanding direct energy bill. This weighed in favor of an unequal division for Mr. Alexander.

Justice Silver declined to order an even split and found that Mr. Alexander was entitled to 50% with the Grosses receiving 25% each.

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