Ty Lacroix: October 2009

Common Law Marriages and the Ontario Family Law Act

 

By Brian Madigan LL.B.

True common law marriages are just like every other marriage. However, they are very rare.

Oddly, the expression "to live common law" refers to a marriage of presumption in England. If two people (definitely opposite sex at the time) lived together continuously for a period of 7 years, it was then assumed that they had gone through a legal marriage (and had lost the documents), unless it could be proven that this was not the case. So, a common law spouse was a legal spouse for all purposes; the only difficulty was proving it.

Actual proper proof would be a Court Order, but that could be an expensive remedy. That's going to cost $10,000, so, if they are alive they go to City Hall, and if one, or both are dead then they (the estate) are stuck with the Court Order.

You will appreciate that under the circumstances, there would be a "need" to prove that perhaps grandma and grandpa were married. And, a common law marriage will suffice for the purposes of succession in an estate.

The presumption is that they were truly married, and they just lost their marriage certificate. However, it's a rebuttable presumption. So, if someone else knows the truth, for example another close elderly relative then that person's evidence may rebut the Court's assumption that they must have been married. So too, would be actual evidence from one of the living parties to the marriage. If grandma wants to inherit grandpa's estate because, as she says, they were "married", then she will have to testify to that fact in Court. The Court would be free to draw an adverse assumption from her failure to testify.

You will notice that the rules become somewhat complex, and it's more preferable to have certainty.

Let's move on to the usual category.

The term "common law" usually does not mean a "common law marriage" in the vernacular. It simply refers to a loose arrangement of parties living together.

These parties may be protected under the support provisions of the Family Law Act, but they do not share in property.

Only true spouses have the possessory rights with respect to matrimonial homes and certain other rights that may involve the entitlement to a division of the property upon the breakdown of the marriage.

However, the rights of people simply living together are not to be discounted in their entirety. They may have certain rights that accrue in their favour otherwise at common law. So, to immediately draw the conclusion that they get nothing upon dissolution of the marriage or upon the death of the other party would be incorrect. They simply don't get anything under the Family Law Act. But, not everyone does! Business partners have certain rights, and they are not spelled out in the Family Law Act. They might be entitled to damages by contract, tort, unjust enrichment, or trust law. Obviously, if they have a case, it's going to be more difficult to prove, but it's not impossible.

Quickly to summarize:

· A true common law marriage is a true marriage for all purposes

· Parties living together, have certain support rights under the Family Law Act

· Married spouses (those who have a certificate or Court Order) have possessory rights under the FLA with respect to the matrimonial home

· Other spouses do not

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

The Use of Surveys for Subdivisions in Ontario

 

By Brian Madigan LL.B.

Ontario Land Surveyors are called upon to prepare three kinds of surveys for the division of property by subdivision:


1) M-Plan,

2) Registered Plan,

3) Condominium Plan

Upon registration in the Land Registry Office, these surveys divide property into lots or units and set out boundaries for the first
time, after appropriate approvals have been obtained.

Another type of survey, namely the Reference Plan or R-Plan is used to assist in the severance of property, but it is the registration of the transfer, deed or conveyance that actually results in the division of property, not the survey.

In the case of plans of subdivision (M-Plans and Registered Plans), and condominium plans, it is the registration of the plan that subdivides the parcel of property and creates the new lots or the new units.

In Ontario, there are two systems of land registration both in use concurrently throughout the Province, the Land Titles system and the Registry system. An M-Plan is a plan of subdivision in the Land Titles system and a Registered Plan is a plan of subdivision in the Registry system.

It is now a requirement that in most areas, a property must be transferred from the registry system to land titles before a plan of subdivision can be registered.

A condominium plan is composed of a Declaration and Description. The Declaration is the most important component of the Constitution of the Condominium which is the Declaration itself together with the By-Laws. The Description is essentially the plan of survey, together with some additional architectural drawings and structural plans.



Remember the example under discussion:

· A farm comprised of 100 acres

· a large 150 year old farmhouse and small barns and outbuildings

· next stage will be to carve up the property into two pieces

· one acre is to remain with the farmhouse and to continue as a residential property

· remaining 99 acres are to be developed

The surveyor then creates legal descriptions that could be used for future conveyances of the two parcels as follows:

1) Part 1, Reference Plan 241 (being one acre with a farmhouse),
2) Part 2, Reference Plan 241 (being ninety-nine acres).


When it comes to dividing up the 99 acres, a plan of subdivision or M-Plan will be used. It will be based upon Part 2, RP-241.

Let's assume that the 99 acres is to be divided into:

· Roads and streets

· Municipal property, for drainage and sewers

· School property

· Retail areas

· 200 lots for residential development

All of these items will be included in the new plan of subdivision, which would be registered as ie. M-796.


In fact, part of the 99 acres could be a condominium development. Perhaps some 5 acres might be sectioned off for such a development. Typically, such a parcel would be shown as Block "A". That designation is for property which is later to be the subject of development. Two apartment towers of 30 storeys each might contain 5 apartments per floor or 150 units in the building. These two towers might accommodate the same number of people as the remaining 200 lots for residential housing.

The condominium registration of the constitution and the survey divides the property into legal units. The condominium is usually described by the municipality and the registration number in series, ie. Peel Condominium Corporation No. 812. The legal description now that registration has taken place can be sufficiently located by reference to PCC 812. However, the former legal description used immediately prior to registration would have been Block "A", Plan M-796.

You will appreciate that the condominium cannot be registered until an Ontario Land Surveyor certifies that those two 30 storey towers are really there. There's no such thing as "real estate" in the air. The buildings must be present, and confirmed by an OLS before the registration and creation of the units.

These activities help to underscore the importance of the survey profession.


Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com

The Four Basic Types of Surveys in Ontario

 

By Brian Madigan LL.B.

Ontario Land Surveyors are called upon to prepare four basic types of survey:



"1)Plans of Subdivision (M-Plan, Registered Plan, Condominium Plan) Upon registration in the Land Registry Office, these surveys divide property into lots or units and set out boundaries for the first time, after appropriate approvals have been obtained.

2)Reference Plans (R-Plans) These are deposited plans and graphical representations of descriptions, as well as representations of divisions of land under the Planning Act.

3)Plan of Survey This may be a reference plan, an undeposited plan in the form of a Surveyor's Real Property Report (SRPR), or a standard survey plan.

4)Surveyor's Real Property Report A Surveyor's Real Property Report (SRPR) is a legal document that clearly illustrates the location of all visible public and private improvements relative to property boundaries."*

One of the principal purposes of a survey is the division of property. Simply put, without a survey, property remains as one large parcel. It is only with a proper survey that it can be divided into smaller units.

So, let's start out with the process. A farm in the close suburbs may be comprised of 100 acres along a major roadway. It may have street frontage on two sides. If it were the entire concession lot, it would be exactly 200 acres and have four streets as boundaries. The dimensions would be one and a quarter miles by one and a quarter miles. Over the years, this large farm may have been broken into two 100 acre farms or even four 50's.

The next item is a large 150 year old farmhouse and small barns and outbuildings. When setting out to develop the property, the first item to check will be #3 a Plan of Survey. Does it show the boundaries and does it show the buildings? If matters are to proceed, a new and current survey will have to be prepared. This will be #4, the Surveyors Real Property Report. It will contain two pages:

1) a graphical representation of the property, and
2) an opinion from the surveyor.

The next stage will be to carve up the property into two pieces. Let's assume here that one acre is to remain with the farmhouse and to continue as a residential property, and the remaining 99 acres are to be developed.

Now we need an updated survey. So, we need to have a graphical representation that can be used to apply for a division of the lands into two parcels, one 1 acre and one 99 acres.

A surveyor will utilize the #4 Surveyors Real Property Report as the basis, and outline the two parts:

1) Part 1, being one acre with a farmhouse,
2) Part 2, being ninety-nine acres.

This particular survey will be taken before the Land Division Committee or the Committee of Adjustments, depending upon which committee has jurisdiction for severances in that area.

This particular survey is not "deposited". The term deposit is a reference to the fact that the survey might be "filed" or registered in a particular Registry Office. In this case, the survey is submitted to the municipality to go through the land severance process. At this point, there is no need for registration.

Let's assume that the severance is granted.

The surveyor then prepares a Reference Plan, known also as an R-Plan. It is taken over to the Registry Office to be filed. Upon the payment of the prescribed fee, the R-Plan is "deposited" in the office as a reference plan, or at least a plan that can be "referred to", if need be. The term "registered" is a term of art in the conveyancing business, so a similar but different term was required, hence: "deposited".

For ease of location within the office, it is given a number, ie. 241 (the next number in series at that office).

Now, we have a legal description that could be used for future conveyances, two parcels as follows:

1) Part 1, Reference Plan 241 (being one acre with a farmhouse),
2) Part 2, Reference Plan 241 (being ninety-nine acres).

So far, the farmer still owns the entire 100 acres. Nothing has happened yet. There are three choices in terms of conveyance:

1) the entire 100 acres using the old property description,
2) the one acre parcel, using Part 1 R-Plan 241, and
3) the ninety nine acres, using Part 2 R-Plan 241.

Actually, there's one more possibility and that is to use the new description to convey the entire 100 acre parcel. So, that would be Parts 1 and 2 R-Plan 241.

But, remember even though there has been an approval of the severance, there is no severance until there is a conveyance. The "approval" is of limited duration. It will expire in 12 months unless it is acted upon.

That means the farmer must convey either Part 1 or Part 2 separately to a third party. Upon registration of the conveyance which has the consent of the appropriate approving authority attached, the property consisting of 100 acres will be severed into two parcels, one acre and ninety-nine acres.

And, when it comes to dividing up the 99 acres, a plan of subdivision (#1) or M-Plan will be used.

* source The Association of Ontario Land Surveyors

Brian Madigan LL.B., Realtor is an author and commentator on real estate matters, Royal LePage Innovators Realty
905-796-8888
www.OntarioRealEstateSource.com