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NON-TITLED SPOUSE TRUMPS LIEN & SALE of matrimonial home unit Ching v Carleton C.C. # 203 2019/09/24 00:39  
Highly respected Ottawa condo lawyer Rod Escayola ( Gowling WLG ) has articled an eye-opening recent decision of an Ottawa court.

It trumped a lien & power of sale processes ( plural ) WELL UNDERWAY before the non-titled ( no longer resident ) spouse of the sole title-registered owner, was able to persuade the court to invalidate & cancel almost all of $ 90 K costs incurred on what she persuaded was also her "matrimonial home" regardless of title. .

Bottom line, the spouse is judicially placed now to be able to redeem the arrearant "matrimonial home" unit by paying a mere $ 10 K If - that's IF - the lien etc had been also directed her way originally.

This redemption she had already offered without success, an offer rejected due to the costs already "sunk" by the condo corporation.

From a judicial precinct with some disturbing past lien outcomes, this outcome will instead surprise some governancers unless appealed successfully.

The author was litigation counsel for the condo corporation. He comments that liening is "becoming a minefield". Mr Escayola reminds the critical need to rely on competent professional legal advice to avoid losing such as the plus $ 80 K ( net ) apparently already sunk into this lien & enforcement. Is that down the tubes over less than $ 10 K in unit arrears ?

( NOT legal advice : The governancer argument must have been made :

But the wife's name was NOT expressly as an owner on land title, nor in the required condo owners list !

Should - and HOW SHOULD - we be trying to track who gets married ? Or who's merely "living in sin without benefit of clergy" ? ( ie no entitlement to LIENING Notice under Family Law Act nor an ENCUMBRANCER protection )

In fact what authority do we as governancers even have for proliferating the contribution defaults otherwise than expressly as we understand them purely under Ontario's Condominium Act 1998 ?

Couldn't such proliferation ( without Condo Act provision ) sometimes even escalate domestic family warfare ?

But in reply the latest decision seems to say that regardless of formal inclusion as "owner of record" within an Ontario condo unit's legal title, a legal spouse is entitled to full Notices of condo LIEN PROCESS against a "matrimonial home".

Elst which the LIEN is void against the non-titled spouse.

And especially so where the spouse as here had previously filed into title a D.M.H. Designation of Matrimonial Home. Displaying therein her ( & her lawyer's ) address right on the title, there is less reason to complain "How would we even know ? Or where to find her ? ! " etc . ..

And further as to the subsequent mortgage-like enforcement, the latest decision seems to continue that given the above, the legal spouse's notice constitutes an "ENCUMBRANCE". That the matrimonial home status further creates an alert-generating interest with parallels to a lender with registered mortgage ! . . . - not legal advice again )

The decision & articles

Not yet at :Ching v Carleton C.C. # 203 & McIntosh (2019) ONSC 4338 issued Sep 10/19 Motion-Sept-10-2019.pdf

WITH LINKS TO A PDF VERSION, the first article :

Sep 19/19 “Court Expands Condo Lien Notification Requirements” by lawyer Rod Escayola ( Gowling (WLG) Ontario

More articles appear :

Sep 20/19 “Whose Notice is it Anyway ? ” by Evan Holt( Robson Carpenter LLP )
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