Date: 06 Mar, 2014| Author: Fred Streiman

We have discussed elsewhere the extremely complicated issue of the rights that commonlaw partners have against the other’s property in the event of a separation. Those rights are very different than those granted under the Family Law Act to married spouses. These commonlaw property rights are generally rights of equity or judge made law.

One particular heading for such a claim is that of constructive trust in which the court imposes a trust right against the others property justified on the grounds of unjust enrichment or other equitable remedies (in English, it is unfair that the other benefited from your actions).

However, this has run into limitation problems.Generally speaking in Ontario, all claims are governed by the Limitations Act which holds that any lawsuit must be started within two years of the date on which the right should reasonably have been discovered by the Plaintiff.

If such a limitation period was imposed upon commonlaw spouses, one could envision a scenario in which the commonlaw spouse who feels that he or she has a claim, must bring such a claim even before the relationship ends.

Justice Perkins in 2013, made a decision that may yet be appealed. In the case of McConnell v. Huxtable, Justice Perkins decided to use the specific limitation period under the Real Property Limitations Act which provides a ten year limitation period for claims to recover land.

This is all clearly extremely complicated and complications that the drafters of the Family Law Act hoped would never arise, but they have nonetheless courtesy of various court decisions, and most importantly, the Supreme Court of Canada in Scott v. Branow.

The lawyers at Dale Streiman Law L.L.P. have on many occasions had to grapple on behalf of their clients with thorny and competing equitable claims between separating commonlaw spouses. One should appreciate that the gender of the parties is irrelevant and indeed Dale Streiman Law L.L.P. has extensive experience in acting for same sex commonlaw parties who are separating.

Any commonlaw spouse who finds themself separating would do well to speak to an experienced family law lawyer to assist them with this thorny issue.