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In This Volume

103 (1) In this section, “spouse’s interest” means the interest of a spouse arising under section 81, a property agreement or an order respecting property division.

  • (2) Section 29 of the Land Title Act applies to a spouse’s interest in land.
  • (3) If, on acquiring property other than land, a person does not have actual notice of a spouse’s interest in the property, the spouse’s interest is not enforceable against that person.
  • (4) Despite subsections (2) and (3), a spouse’s interest is enforceable against the other spouse from the date of separation, unless a property agreement between the spouses, or an order, provides otherwise.

2011-25-103, effective March 18, 2013 (B.C. Reg. 131/2012).


Section 29 of the Land Title Act

A spouse’s unregistered interest in land is not enforceable against a person, contract, or dealing with or proposing to take a transfer of land or charge on land from a registered owner, even if the person had express, implied, or constructive notice of the interest, except in the case of fraud in which that person has participated.


See Di Castri, Registration of Title to Land, vol. 1, para. 319.


This case involves the interactions between ss. 83 and 101 of the Family Law Act and s. 29 of the Land Title Act. Katheryn Berezowskyj (“KB”) and Aaron Fell (“AF”) were in a marriage-like relationship from January 2007 to June 2019, when KB moved out of the family home. They had two children together. AF’s son from his former marriage also lived with them. KB filed a Notice of Family Claim in August 2019, in which she sought equal division of family property, and registered a Certificate of Pending Litigation against the property. In September 2020, KB obtained a final order in the family law case that included a term that the parties divide equally any equity in the home after a sale, pursuant to s. 81 of the FLA. It also contained a term that AF would be responsible for all debts in his name and any judgments and encumbrances registered against the former family home. In August 2019, just after the separation, AF mortgaged the home to Fairwest Holdings Ltd. for $400,000. In early 2020, Elite Mortgage Corp., a prior encumbrancer, petitioned the property into foreclosure. It obtained an order approving the sale of the property for $1,115,486. It was paid out the amount owing to it, as was another mortgagee, Toronto Dominion Bank. The balance of $567,024 was paid into court. Of that, $150,391.20 was paid out to the Family Maintenance Enforcement Program in respect of support owing to AF’s former spouse. Fairwest applied for payment of the amount owing to it by AF from the remaining sale proceeds. KB opposed. She also filed her own application in which she sought payment of 50% of the remaining proceeds to her. She claimed entitlement pursuant to the September 2020 order issued in her family law proceeding. Held, Fairwest’s application dismissed, with leave to reapply; KB’s application dismissed. KB said that by virtue of ss. 81 and 103 of the FLA, she was entitled to a half interest in the property as a tenant in common as of June 2019, when she and AF separated. As a result, subsequent charges, such as the Fairwest mortgage, could attach to only AF’s interest in the property. However, the exact circumstances that arose were dealt with by s. 29 of the LTA, to which s. 103 of the FLA is expressly made subject. Section 29 makes it clear that a registered charge has priority to an unregistered interest. Accordingly, the Fairwest mortgage had priority over KB’s interest in the property. In coming to that conclusion, the court had not considered any further remedies KB might have against AF or what, if any, recourse she might have under the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163 and/or the Fraudulent Preference Act, R.S.B.C. 1996, c. 164 for encumbering family property post-separation, as those issues were not before the court. However, payment out to Fairwest would not be ordered. The evidence of its right to payment was inadequate. There was a second company shown on the Fairwest mortgage as having an interest in the mortgage, yet it was not represented on the application. As well, s. 29 of the LTA provides that a registered charge will have priority over an unregistered interest “except in cases of fraud in which [the charge-holder] has participated”. Here, the evidence was such that the court could not be satisfied there was an absence of fraud so as to find that s. 29 applied. That was not to suggest there had in fact been fraud. Rather, Fairwest had simply not provided sufficient evidence to support its application for payment out (Elite Mortgage Corp. v. Fell, 2020 BCSC 2007).