The Court of Appeal released an important family law decision regarding the sale of property today: Berthin v. Berthin, 2016 BCCA 425. This decision might bring some comfort to purchasers of real estate that is subject to family law proceedings.
The trial judge ordered a property to be sold. The wife later got sole conduct of the sale and, later, a vesting order for the purchasers. The purchasers registered the vesting order at the LTO and title was issued in the purchasers’ names. Nearly a year after the trial decision was issued, the CA allowed the appeal of the trial decision and sent the family claim back to trial court to be decided again. The husband applied to set aside the vesting order. His application was dismissed, and he appealed to the CA.
Generally, the Court will not set aside a vesting order for a bona fide arms-length purchaser once the sale has completed. The husband argued that the purchasers knew that the husband was opposed to the sale, had an appeal pending, and had applied for an order staying the sale order until the appeal could be heard, i.e. they were not good faith purchasers shielded from the consequences of the trial judgment. However, the purchasers knew that the husband’s application to court to stop the sale had been unsuccessful and that the court had made a vesting order. The purchasers “were not required to second guess the authority of the Court … they were entitled to rely on those orders and cannot be faulted for doing so.” The CA dismissed the appeal.
Brennan J. Clarkson has helped clients with family law and estate law cases since 2008. He practices in Port Moody, British Columbia at Clarkson Law Corporation.
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