Instruments of Protection in Divorce or Separation (Land Title Documents) – Part II

Family Law

Let’s say you’re living in a home with a spouse and you’re not on title. How do you make sure that the house can’t be sold by your spouse or possibly someone inheriting the property under your spouse’s will? One way to do it, if you’re separating, is to start a court action and place a certificate of pending litigation on it, maybe coupled with a property restraining order under s. 91 of the Family Law Act for good measure. Any owners of the property will be notified when the certificate of pending litigation, or CPL, is placed.

What if you’re not separating, though, or you just want some reassurance? You can obtain, without anyone being notified, protection for the family residence only (so unlike CPL’s, rental properties or vacation properties are excluded) under the Land Spouse Protection Act. This makes any sale done of the family residence (referred to as a “homestead” in the Act) without your consent void, and can even bind the estate of the owner in the event of her or his death. The advantage to this is that you can file it and leave it on for years if you are still together without having to start a court action, and it will stay there, silently protecting you. The one caveat is that if anybody does a title search—which would be normal prior to a sale of the house—they will discover it. On the other hand, if your spouse is doing a title search in preparation for the sale of the house without you knowing anything about it, then that’s probably a circumstance where you should be glad to have the protection there.

As always, for an analysis of your individual situation, you should seek legal advice.

Please contact one of our Family Law lawyers for more information.