Family law disputes are complex and multidimensional. They centre around resolving various issues that include parenting obligations, support obligations, and property allocation. In the majority of family law disputes, the heart of the matter involves the principal residence of the parties. For married couples, this is the matrimonial home, which has special protection under the law, as both spouses have an equal right to possession of the matrimonial home regardless of which spouse is on title to the Home. In Ontario, section 18 of the Family Law Act (“Family Law Act” or “FLA”) defines the “matrimonial home” as “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and [their] spouse as their family residence”.[1] One the other hand, common law couples who share a family home do not have the same right to the ‘family’ property if they are no on title to the Home, and might need to explore other ways to protect their interest in the property. This is because couples who are not married are not subject to the Family Law Act regime of equalizing net family properties nor establishing the family residence as a matrimonial home per se as per FLA’s section 18.
A Certificate of Pending Litigation (the “CPL”) is one of the mechanisms that can be used in order to safeguard the family home during the settlement of a dispute. The CPL is mandated by Form 42A of the Rules of Civil Procedure, and is issued by local Registrar of the Ontario Superior Court of Justice. A judge has to grant leave to do so, and once the CPL has been obtained, it is then registered on title. Once the CPL is registered against title, other parties that are interested in this property will know that this particular property is subject to a court dispute.
In the case of divorce proceedings in Court, the CPL might be used as an added precaution when only one of the disputing parties is on title and there is a risk that they will attempt to sell the property before the divorce proceedings are concluded. The CPL can also be used when dealing with a family home of common law partners. Even though it is not a matrimonial home for common law partner, it might still be subject to a separation dispute, particularly if one of the parties is attempting to establish a constructive trust. This is because an interest in land does not have to belong to the applicant. It is sufficient that a spouse is alleged to have a beneficial interest in the property for a certificate of pending litigation to issue.
However, a word of caution when it comes to bringing a claim for a CPL. Judges are unlikely to grant a CPL if there are alternate options for dealing with an interest in a property.[2] Moreover, if a party brings a claim for a CPL without a “reasonable legal claim” they would be liable for damages, and would have to provide an “undertaking to damages”, so that should there be damages caused to the Respondent unfairly, the Applicant will be responsible to pay for those.
Do you have more questions? Contact MUNERA at info@munera.ca and talk to a family lawyer about who gets to stay in the matrimonial home during divorce proceedings.
[1] Family Law Act, RSO 1990, c F3, at s. 18.
[2] Bains v. Khatri, 2019 ONSC 1401.
NOTE: This article has been written for general information purposes only and does NOT constitute legal advice. For further questions and/or legal advice please consult a qualified lawyer.