I’ve been getting a lot of calls lately about how the transition provisions of the Family Law Act work in respect of the present property claims of unmarried couples. It’s not terribly complicated. This is what s. 252 of the FLA provides:
[Ed. note: All links to sections of the FLA are to the Third Reading version of Bill 16 - 2011]
Transition: proceeding respecting property division
(1) This section applies despite the repeal of the former Act and the enactment of Part 5 of this Act.
(2) Unless the spouses agree otherwise,
(a) a proceeding to enforce, set aside or replace an agreement respecting property division made before the coming into force of this section, or
(b) a proceeding respecting property division started under the former Act
must be started or continued, as applicable, under the former Act as if the former Act had not been repealed.
The good news about this provision is in the last line about proceedings started or continued under the Family Relations Act. Here’s how this plays out.
No Action Commenced: Parties Separated Before 18 March 2011
Under FLA, s. 198(2), a “spouse” must start a proceeding for the division of property under the new act no later than two years from the date of separation for unmarried spouses, or from the date of divorce or annulment for married spouses. Under s. 3(1), “spouse” includes common-law spouses for all purposes under the act, including the division of property, and under s. 3(2), “spouse” includes former spouse.
If your client separated before 18 March 2011, he or she will not be a “spouse” as defined by the FLA when the new act comes into force on 18 March 2013. Start a Supreme Court action based on the equitable principles of unjust enrichment and the associated remedies in trust. Reread Kerr v. Baranow and may the force be with you.
No Action Commenced: Parties Separated On or After 18 March 2011
Your client will be a “spouse” as defined by the FLA when it comes into effect on 18 March 2013. Start a Supreme Court action now if there are limitations under the FRA to preserve or some other reason to commence proceedings, state your client’s claim as a claim for a property interest under the principles of unjust enrichment and amend your pleadings to claim under the FLA when it comes into effect.
You will not be trapped into the FRA as a result of FLA s. 252 for the simple reason that right now it is not possible to “start or continue” a “proceeding respecting property division” under the FRA. You couldn’t file a claim for the division of family assets under the FRA even if you wanted to; your client isn’t married. Oh, one minor detail. Don’t let the case proceed to trial between now and 18 March 2013.
Action Commenced: Parties Separated Before 18 March 2011
Proceed to trial.
Action Commenced: Parties Separated After 18 March 2011
If you’re acting for the property owner, you’ve got seven months to get your case to final judgment.
If you’re acting for the non-owner, you’ve got seven months to delay, hinder and obstruct the case from getting to trial. Your client’s rights are going to change substantially when the FLA comes into effect, and you have no incentive at all to hurry off to trial. Instead, sit back, relax, and amend when the time is ripe.
But What If There’s a Cohabitation Agreement?
This shouldn’t matter unless you brought a claim under FRA, s. 120.1 prior to its repeal on 24 November 2011. Assuming you haven’t brought that claim – they were rare enough at the best of times – you still won’t be trapped in the FRA by FLA, s. 252. Whatever proceeding you might have brought in respect of the contract will, by necessity, have been brought under the common law of contracts because FRA, s. 65(1) doesn’t apply to unmarried couples. You therefore will not have “started or continued” a “proceeding to enforce, set aside or replace an agreement respecting property division” under the FRA, and may file under the FLA as you wish when it comes into effect.