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w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 8 23 While seeking a claim on the property 44 years later is unusual, there can be other challenges for the spouse who wants to retain the family property. With through-the-roof house values in Toronto and Van- couver, many are house rich and money poor, so an indi- vidual might be challenged when buying out their partner and seeking financing on their own. "That creates some interesting issues for people and some creative solutions for us to figure out how to keep them in the property and perhaps how to refinance and possibly to handle things in a different way," says Read. Parents or family members might be summoned to go on title to help secure the necessary financing. Again, that sepa- ration agreement is crucial. In British Columbia, the property transfer tax exemption is required, which, at one per cent for the first $200,000 and two per cent for the remainder, can be a huge savings. There is also a significant difference in how property is viewed for common law couples versus married couples. In a common law relationship, if one spouse is not on title, even if they've been in the relationship for more than three years and have a child through the relationship, they have no rights on the property, whereas the married spouse does. The common law spouse will have to make a claim on the property. If that single person on title emerges from the relationship and sells the house, that could potentially expose the pur- chaser to legal action, says Jacqueline Boucher, who practises family and estates law with Cox & Palmer in Saint John, N.B. "You could end up in a situation where the former spouse who was left out of the transaction brought the purchasers into litigation to establish their claim." What is more likely to happen, she says, is that spouse will file a lis pendens, or certificate of pending litigation, which is registered on title. That provides a warning to potential pur- chasers that there may be litigation on the property. There is also a remedy available to the spouse who wants to sell the house and get out of the relationship when the other party isn't agreeable. It's a situation Travers has seen with young couples, particularly women who feel they're carry- ing the financial burden. They have the option of seeking an action for partition, which forces the unwilling party to agree to the sale of the house. "It always seems to be the young woman who's trapped in this situation where she wants to get out, she wants to sell and the boyfriend is not agreeable. And then we threaten the partition action and then we get [it] resolved," he says. The worst-case scenario is going to court, dispensing with the husband's signature and forcing the sale of the property, which Travers says takes time. A simple house sale between a splitting couple that seems to agree on the terms may raise some red flags for lawyers. Tony Spagnuolo of Spagnuolo & Company Real Estate Law- yers in Coquitlam, B.C. will stand back if he sees a feuding couple selling the matrimonial home. If it's clear that there are many unresolved issues that might manifest themselves in the house deal, he'll suggest they each secure their own lawyer. "If it's a War of the Roses scenario, then we wouldn't even act for both of the sides of the transaction; we would not act for both vendors," says Spagnuolo. "If a couple is getting divorced and they're really having it out, we would only act for the husband or wife; we would not act for both . . . just because it would be so easy for interests to collide later on down the road. It's just easier if you just act for one party, rather than the two of them." YOU COULD END UP IN A SITUATION WHERE THE FORMER SPOUSE WHO WAS LEFT OUT OF THE TRANSACTION BROUGHT THE PURCHASERS INTO LITIGATION TO ESTABLISH THEIR CLAIM. JACQUELINE BOUCHER, Cox & Palmer © 2018 Thomson Reuters Canada Limited 00249HQ-90624-NP Where are legislative changes taking your client? Stay ahead of the curve with Legislative Watch Sign up for a free trial today westlawnextcanada.com/legislative-watch

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