The Life and Times of the F.L.A.
25th Anniversary of the Family Law Act, Law Society of Upper Canada, Toronto, March 1, 2011
15 Pages Posted: 28 Nov 2012
Date Written: February 22, 2011
This paper, which was written for a conference marking the 25th anniversary of Ontario’s Family Law Act, provides some broad reflections on Part I of the Act, dealing with matrimonial property. Part I brought into effect what is essentially a scheme of deferred community that provides for equalization of the net profits of the marriage when the marital partnership is terminated by separation, divorce, or death. The paper acknowledges the enormous success of Part I of the F.L.A. in accomplishing its major goals of putting in place a fair scheme of matrimonial property rights and of promoting the orderly settlement of property disputes and reducing incentives to litigate. However, the paper also recognizes that certain problems with the legislation were identified very shortly after enactment -- some the result of hasty drafting and others the result of unexpected and unintended judicial interpretations of the Act. For the most part these were not fundamental flaws, but it was clearly recognized that the Act needed some fine-tuning. The paper then goes on to show, through an “F.L.A. timeline,” an unfortunate history of legislative unwillingness and delay in responding to the following issues: • the valuation and division of pensions and other future income streams • fluctuations in property values between separation and trial • the ongoing significance and importance of ownership, complicated by doctrines of constructive and resulting trust • the special treatment of the matrimonial home • the differential treatment of gifts and inheritances depending upon whether they were received before or after marriage • the absence of anti-avoidance mechanisms • unmarried couples
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