By Francis Akinnuoye
1. Failure to Act Diligently or Immediately Inform Your Bank of the Marriage Separation
IF YOUR BANK DOES NOT HAVE A POLICY in which they “suspend” or “freeze” a jointly owned bank account upon notification of family separation, it would be prudent to mark the date of the separation on your calendar and print out or keep a record of the transaction history of your bank account from the date of separation and thereafter, according to one bank official I spoke with. This is advisable in the event your spouse begins to dispose of, transfer, or convert property that is, or would have been, characterized as jointly owned matrimonial property causing your interest in that joint property to be defeated or adversely affected.
2.. The Obligation of a Step Parent or Adoptive Parent
MANY WRONGLY ASSUME THAT IF THEY MARRY, OR COHABIT with, a single parent, they will not have any legal obligations towards their child since that child is not their biological child. However, the Divorce Act, read alongside the Family Law Act (Alberta), may impose liability for child support in favour of “any child of whom one is the parent and for whom the other stands in the place of a parent.” This means that in most cases, the new spouse or adult interdependent partner could be found to be ‘standing in the place of a parent’ even if he or she is only the child’s step-parent or adoptive parent. Accordingly, child support obligations could be imposed in these circumstances upon the breakdown of the marriage or the adult interdependent relationship.
3. Failure to Properly Record/Characterize Support Payments
BEING A DIVORCEE MYSELF, who also practices family law, I can state, on both experience and authority, that it is advisable when paying your ex support payments, to properly record and account for these payments. A difference of opinion regarding the amounts you have paid to your ex can very easily arise and inevitably lead to costly litigation that could have been easily avoided. Agreeing to a Consent (Settlement) Order for the support payments with delivery of those support payments through a neutral third party is advisable. In Alberta, one such party is the Director of Maintenance Enforcement. Although enforcement of the Settlement Order, through the Maintenance Enforcement Program (MEP), is one aspect of the Director’s role, knowing you no longer have to battle over the amount of support you’ve paid is a significant benefit that the Maintenance Enforcement Program provides.
4. Not Proving the Real Property Report On Time
WHEN SELLING A HOME IN ALBERTA IT IS IMPORTANT TO REMEMBER that you do not always have to provide a new Real Property Report (RPR) if no structural changes have been made to your property since the existing RPR was prepared. However, if that is not the case, it is critical to ensure a new RPR has been ordered from a Survey company as soon as your home is listed for sale because, in Alberta, the commonly used Alberta Real Estate Association (AREA) Residential Purchase Contract requires the Seller to deliver to the Purchaser an updated RPR. The RPR must show the current improvements on the property and evidence of municipal compliance with respect to the land and buildings. Often, the Seller, for various reasons, neglects this obligation until after the property has sold.
When this happens, the lawyers for both the Seller and the Purchaser negotiate a “holdback,” customarily in the sum of $5000.00 to be held back from delivery to the Seller until the Seller produces the RPR. This could have a significant impact on the Seller if the Seller needs all the entire net proceeds from their sale i.e. to financing the purchase of a new property or to settle other financial obligations. More importantly, delayed delivery of the RPR could delay the registration of the transfer of the home to the Purchaser because a Purchaser’s lawyer cannot be forced to proceed to registering the Transfer of Land from the Seller to the Purchaser, with the Land Titles Office, until an up to date RPR has been provided and reviewed.
5. Failing to Negotiate a Holdback
WHEN BUYING A HOME IN ALBERTA, the Seller makes a warranty to the Purchaser that the property will be in “substantially the same condition on Closing Day as when the Purchase Contract was accepted,” and, that the included “appliances will be in normal working order.” If the Purchaser discovers this is not the case on Closing Day the Purchaser’s remedy for the breach of the warranty is damages. However, why should a Purchaser rely on suing the Seller when he or she can avoid the expense of litigation by negotiating a ‘holdback’ with the Seller at the time of signing the Purchase Contract? Examples of negotiated ‘holdbacks’ include: a $500.00 to $2000.00 holdback for missing or damaged appliances; a $500.00 holdback for damage to walls and other parts of the property; or even a $250.00 holdback for having to hire a cleaning company on Closing Day to clean a home left in disarray. Your lawyer will enforce the holdback you negotiated with the Seller by not delivering to the Seller the holdback funds at all or waiting until the property is in “substantially the same condition as when the contract was accepted.” Negotiating ‘holdbacks’ with the Seller, in advance, will save you time and possibly great expense by obtaining a negotiated remedy for breach of the Purchase Contract rather than trying to enforce a contractual obligation via the Court system after all the money has already been transferred.
6. Failure to Obtain Title Insurance
BY SPENDING A FEW HUNDRED DOLLARS OR LESS you can potentially save thousands of dollars and potential disaster. In the 2015 Court of Queen’s Bench of Alberta case of Lewis v First Canadian Title “disaster” is precisely what happened.
On March 13, 2014 Mr. Lewis and his partner Ms. Dayo (the “Homeowners”) agreed to purchase a home. Their lawyer advised them their lender required they purchase title insurance to protect the lender’s interests, at a cost of $179.00. The Homeowners declined obtaining their own title insurance protection policy which would have cost $50.00.
After the Homeowners took possession of the home, the Registrar of Land Titles registered a Royal Bank of Canada writ for several thousand dollars against the previous owner of the property. Three days later, the Registrar finally registered the Transfer of Land transferring ownership from the previous owner to the Homeowners. Two weeks later (likely upon learning of the writ registered against their property), their lawyer submitted a title insurance claim on behalf of the Homeowners. The title insurer, FCT, responded saying only First National was insured against any loss from the RBC writ, but since First National did not yet suffer a loss, FCT could not trigger First National’s title insurance policy and therefore First National did not pursue an insurance claim. The Homeowners, in retrospect, were given an opportunity to purchase a homeowner’s policy for only an additional $50.00 but chose not to do so. Such insurance would have likely protected them against the approximately $20,000 intervening writ placed on their title ahead of their mortgage.
Title insurance is intended to protect you against intervening registrations such as in the example above, and survey, building permit, municipal compliance, unpaid utilities and/or fraud issues. For a one-time payment, title insurance can provide coverage that lasts as long as you own the property, can be assigned to your heirs and estate, and is highly recommended by FRANCIS LAW.
7. Not Hiring A Lawyer for an Appearance in Court
BEING A LAWYER WHO IS OFTEN IN COURT, I have witnessed the Court’s treatment of litigants that attend Court without a lawyer. It is difficult for the Courts, as self-represented litigants do not know the rules of evidence nor have knowledge of the rules of civil procedure. The outcome is usually predictable; they’ve likely lost their Court Application; their Claim or Application may have been struck because they’ve missed a deadline and “Court Costs” may have been awarded against them since they lost their Application. The self-represented person has wasted their time and efforts. The Court will then implore them to hire a lawyer. So why not just hire a lawyer from the outset to avoid this scenario playing out in your circumstances?
___________________________________
Francis Akinnuoye, BA, LLB, LLM, is the Managing Lawyer at FRANCIS LAW. FRANCIS LAW (http://www.francislaw.ca) is an Alberta law firm based in Calgary, currently, with three Associate Lawyers and one Student-At-Law to serve your legal needs in the areas of: corporate and business, real estate, family law, personal injury law and in the preparation of wills.
The lawyers at FRANCIS LAW encourage parties to settle rather than to engage in protracted litigation. Focusing the parties on settling, in most cases, saves the parties’ costly legal fees and possible emotional harm to those involved.
Francis has appeared at all levels of Court in Alberta: namely, the Provincial Court of Alberta, the Court of Queen’s Bench of Alberta; and the Court of Appeal of Alberta. Francis has also appeared before the WCB Appeals Commission. Francis enjoys volunteering and is currently interim secretary for the newly formed Association of Alberta Black Lawyers (AABL) and, as of the date of this writing, mentors junior lawyers for the Law Society of Alberta. Francis can be reached at (587) 353-5535 or francis@francislaw.ca.
Leave a Reply