A Vancouver man has proven in court that he deserves half interest in a million dollar home, despite having separated from his wife forty-four years ago.

The case of Johnston v. Johnston Estate, illustrates the importance of having a proper, and timely, separation agreement.

David Johnston and his then wife, Sharon Johnston, bought a house in the Victoria-Fraserview area in 1968.  The house cost $37,500.  They then separated three years later.

The Title for the home was registered under both Mr. and Mrs. Johnston’s names, as “tenants in common”.

The house was assessed to be worth $1.2 million, in 2014.

Mr. Johnston brought the case to court in 2014, in an effort to have the home sold and to share in the proceeds of the sale.  Philip John Lucas (Mrs. Johnston’s son from a subsequent partner), argued that Mr. Johnston was not entitled to any of his mother’s estate.

Mrs. Johnston died in 2009, without a will.  The couple separated in 1971, but never divorced.

After they separated, the couple entered into vague negotiations over property and spousal support.  There was never a formal agreement. Mr. Lucas argued that the couple had a verbal agreement that Mr. Johnston would give his mother the house if she did not pursue spousal support.

Victoria Lawyer Michael Butterfield stated, “It’s quite common to have legal counsel come up with proposals and counter proposals, that’s negotiation.  However, for an agreement, both parties have to agree to the terms.  Usually, that agreement is filed with the court.”

Mr. Johnston denied giving up his rights to the property.  He stated that Mrs. Johnston had no realistic claim of spousal support due to the laws at the time.  This related to her admitted adultery, the financial support from her partner (Ezra Lucas), and superior financial position.

The judge in this case found that there was no valid separation agreement between the parties.  Former negotiations took place, and settlement offers proposed, but no agreement was crystallized between the two.

Justice Warren then determined that Mr. Johnston was entitled to half of the home’s value.

She reasoned that “the parties were married at the time they acquired the Property and title was taken by them as tenants in common, each with an undivided half interest, which suggests that they intended their respective interests to be equal.”

Mr. Johnston was also awarded costs on this case.  However, the final award will also take into account Mrs. Johnston’s costs for maintaining the home as well as the relative benefit for living in the home (e.g. rent).


Jayne Embree, M.A.

Jayne holds a Masters in Psychology and is a highly experienced Divorce Coach and Child Specialist. She is currently working with the Administrative and Human Resources Departments of Butterfield Law.