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VOL. 78 PART 2 MARCH 2020
that the wording of s. 252(2)(a) did not evince any legislative intention to
exclude agreements involving common law spouses from the application of
s. 252(2)(a).28 The claimant in Blunt was left to pursue a claim to property
via unjust enrichment principles.
The result in Blunt, I would argue, is correct, but the reasoning about
s. 252(2)(a) is not. In terms of the result in Blunt, the application to set the
agreement aside was brought more than four years after the agreement was
signed, and the statutory claim was likely statute-barred regardless of
whether the FLA applied.29 With respect to the analysis, the court’s reasoning
in Blunt fails to address the presumption against redundancy, which
requires courts to “avoid adopting interpretations that render any portion of
a statute meaningless or redundant”.30
Arguably, the reasoning adopted by the court in Blunt does exactly that:
the Blunt interpretation of s. 252(2)(a) directs common law couples with
pre-FLA agreements dealing with property and pension division back to the
FRA, a legislative regime under which they have no remedy.
Such an interpretation is inconsistent with the legislative intent to remedy
the “mischief” of treating common law couples differently than married
couples, who still have a remedy under the FRA to review unfair agreements.
Curiously, the portions of a pre -FLA agreement that deal with
spousal support are reviewed under the FLA, as the transitional provisions
apply only to the property division portion of the agreement. On the Blunt
interpretation, common law couples with pre-FLA agreements dealing with
property division slip through the cracks and onto a road to nowhere.
As noted at the outset of this article, the legislature can hardly be faulted for
failing to envision every scenario that might arise. In the family law context,
common law couples with pre-FLA agreements find themselves in a
situation where the transitional provisions of the FLA were not crafted with
the necessary specificity to address their situation. Appellate guidance—
and a route to remediating the situation of common law spouses whose situations
have not been resolved or have been resolved unfavourably to
them—may be provided, as B.L.S. is set to be heard by the Court of Appeal
1. 1949 2 All ER 155 (CA).
2. Ibid at 164.
3. Court of Appeal for British Columbia, 2018 Annual
Report at 16, online: <www.bccourts.ca/Court_of_
/2018_CA_Annual_Report.pdf> (reporting that 36
out of 105 family appeals or applications for leave
to appeal filed involved at least one self-represented
4. Halliday v Halliday, 2015 BCCA 82 at paras 1–2