Question:
My client has been living “common law” for 15 years. She is not registered on the title to their home. Does she have any rights?
Answer:
This area of law can get quite complicated. From a technical perspective, these rights of the wife do often flow out of the Family Law Act. They may actually arise out of another completely different set of laws, namely the common law and the law of restitution which includes unjust enrichment.
That area was not covered by OREA or RECO, so, don’t touch it. That’s the immediate sign that you require legal assistance.Real estate agents are expected to know the rights of the parties to a matrimonial home under the Family Law Act, however, not their rights under any other laws that might apply.
It’s also important to be aware of the fact that the law was changed by the Supreme Court of Canada on 12 February 2012 in Vanasse v. Seguin. Prior to that time lawyers would commonly state that common law couples did not need a cohabitation agreement. After that case, everything changed, so those contracts are now advisable.
In this situation a cohabitation agreement or a marriage contract could have either:
1) documented her interest, or
2) eliminated any interest she may have in the property.
Brian Madigan LL.B., Broker