Lawyers´ Insurance Association of Nova Scotia

1.7 Matrimonial Property Act/ Vital Statistics Act

A lawyer must ensure that the provisions of the Matrimonial Property Act¹ and Vital Statistics Act² are considered when effecting any revision, registration, or recording and when documenting marital status. The statutory protections afforded to spouses, as well as to parties relying upon an affidavit of spousal status³, make it essential that the lawyer be satisfied, after inquiry, that signatures of all those with an interest have been secured.^{4, 5, 6} 

Notes:

1. Matrimonial Property Act, R.S.N.S. 1989, c. 275
2. Vital Statistics Act, R.S.N.S. 1989, c. 494
3. Matrimonial Property Act, R.S.N.S. 1989, c. 275, s.8(3). It should be noted that the statutory
   protection afforded by this section is limited to situations where there is an affidavit of status as
   opposed to an unsworn statement.
4. See Mills v. Andrewes (1980), 54 N.S.R. (2d) 394, where a conveyance was declared void for want of spousal consent.
5. See Sherwood v. Sherwood, Roynat Inc. and Peat Marwick Limited (1982), 52 N.S.R. (2d) 631 at page 638: “. . . the entitlement of a non-owning spouse is a statutory right to possession rather than a matter of title . . . the joinder of a nonowning spouse in a conveyance or encumbrance may be taken ascompelling evidence of an intention either to surrender or subordinate statutory rights. I may note in passing that the statute does not prescribe any mode of signifying consent other than a signing of the instrument”.
6. In the Bank of Nova Scotia v. Halef (2003), 216 N.S.R. (2d) 89, the Court of Appeal found the affidavit of status to be deficient, and that the Bank was therefore not entitled to rely upon the affidavit. The encumbrance was therefore set aside.

Additional Resources

Garth C. Gordon, “Domestic Partners - Vital Statistics Act Amendments”, Canadian Bar Association Nova Scotia, Real Estate/Probate Seminar 2001, October 12, 2001

Practice Note

The Committee members strongly believe that a best practices approach dictates provision of an affidavit as opposed to an unsworn statement of status.