Stuart v. Toth, 2011 MBCA 42

Citation: Stuart v. Toth, 2011 MBCA 42 Date: 20110601 Docket: AF 10-30-07358 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN : ERIN MARGUERITE MARIE STUART ) S. B. Malamud ) for the Appellant (Petitioner) Respondent ) ) E. Hirsch ) for the Respondent - and - ) ) Appeal heard: ) November 1, 2010 MARK STEVEN TOTH ) ) Judgment delivered: (Respondent) Appellant ) June 1, 2011 BEARD J.A. I. THE ISSUE 1 This is an appeal from a decision of a judge, on a motion, regarding the

interpretation of the provisions of s. 4 of The Family Property Act, C.C.S.M., c. F25 ( The FPA ), as they apply to two people who became common-law partners within The FPA . This can occur in one of two ways: (

i) they can choose to become common-law partners by registering their relationship under s. 13.1 of The Vital Statistics Act , C.C.S.M., c.

V60; or (ii) they will automatically become common-law partners for the purposes of The FPA following three years of cohabitation in a conjugal relationship (the prerequisite three years). 2 I will refer to the first as “registered common-law partners” and the second as “non-registered common-law partners.” 3 The issue under appeal is whether the assets acquired by non-registered common-law partners during the prerequisite three years are included in, or excluded from, an accounting under The FPA .

The decision of the motion judge was that those assets must be included in the accounting once the unmarried partners meet the three-year cohabitation criterion, that is, when the common-law relationship crystallizes. The appellant has appealed that decision. II. THE FACTS 4 The facts are not at issue. The appellant and respondent were never married to each other and they never registered their relationship under The Vital Statistics Act .

They lived together continuously for over seven and one-half years, having commenced cohabitation on June 18, 2000, and separated on January 29, 2008, which is the agreed valuation date under The FPA .

Their habitual residence throughout their relationship was Manitoba. 5 Following their separation, the respondent on this appeal filed a petition, pursuant to The FPA, for an accounting and sharing of assets and the appellant filed a motion for “a declaratory order finding that the common-law relationship of the parties for the purposes of inclusion, valuation, accounting and division of assets in the family property accounting is the day following the last day of the third year after the parties commenced cohabiting in a common-law relationship.”

III. THE LAW 6 This appeal brings into consideration several sections of The FPA , as follows:

Definitions 1(1) In this Act, . . . . . “common-law partner” of a person means (

a) another person who, with the person, registered a common-law relationship under

section 13.1 of The Vital Statistics Act , or (

b) subject to subsection 2.1(2), another person who, not being married to the person, cohabited with him or her in a conjugal relationship for a period of at least three years commencing either before or after the coming into force of this definition; “common-law relationship” means the relationship between two persons who are common-law partners of each other; . . . . . “spouse” where used in relation to another spouse means the person who is married to that other spouse, and “spouses” means two persons who are married to each other. Assets generally 3 Where this Act applies to a spouse or common-law partner under

section 2 or 2.1, it also applies to every asset of the spouse or common-law partner except as herein otherwise provided, and where this Act does not apply to a spouse or common-law partner by reason of any provision of

section 2 or 2.1 it also does not apply to any asset of the spouse or common-law partner notwithstanding any other provision of the Act. Assets acquired during marriage and cohabitation 4(1) This Act does not apply to any asset acquired by a spouse (

a) while married to but living separate and apart from the other spouse; or (

b) while married to a former spouse unless the asset was acquired while living separate and apart from the former spouse and it can be shown that the asset was acquired in contemplation of marriage to the present spouse; or (

c) while unmarried. Assets acquired before marriage 4(2) Notwithstanding clause (1)(c), this Act applies to any asset acquired by a spouse before marriage if

(

a) the asset was acquired when the spouse was cohabiting in a conjugal relationship with the other spouse immediately before their marriage; or (

b) the asset was acquired before, but in specific contemplation of, the cohabitation with, or the marriage to, the other spouse. Assets acquired during common-law relationship and cohabitation 4(2.2) This Act does not apply to any asset acquired by a common-law partner (

a) while living separate and apart from his or her common-law partner; (

b) while in a common-law relationship with a former common-law partner unless the asset was acquired while living separate and apart from the former common-law partner and it can be shown that the asset was acquired in contemplation of the common-law relationship with the present common-law partner; or (

c) before the commencement of cohabitation. Assets acquired before cohabitation by common-law partner 4(2.3) Notwithstanding clause (2.2)(c), this Act applies to any asset acquired by common-law partners before, but in specific contemplation of, their common-law relationship. Appreciation, depreciation, income 4(3) Where by reason of any provision of subsection (1) or (2.2) this Act does not apply to an asset of a spouse or common-law partner, then, with respect to all assets other than those exempted from the application of this Act by

section 7, in any accounting under

Part II, notwithstanding that provision, (

a) any appreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse, or while the common-law partner was cohabiting with the other common-law partner, shall be added to the inventory of the assets of that spouse or common-law partner; (

b) any depreciation in the value of the asset that occurred while the spouse was married to and cohabiting with the other spouse, or while the common-law partner was cohabiting with the other common-law partner, shall be deducted from the inventory of assets of that spouse or common-law partner; and (

c) any income from the asset earned while the spouse was married to and cohabiting with the other spouse, or while the common- law partner was cohabiting with the other common-law partner, shall be treated in the same way as income from an asset to which this Act applies. IV. THE MOTION JUDGE’S REASONS 7 The motion judge stated that the motion asked, in effect, whether The FPA is “framed with an intent to apply ‘retroactively’ to the date of commencement of cohabitation, in circumstances where [ The FPA ] applies by operation of law” (at para. 3). In arriving at his decision, the motion judge looked at the combined effect of ss. 3 and 4(2.2)(

c) of The FPA . He noted that the effect of s. 3 was to include, for valuation purposes, all assets of the common-law partner, and that the assets that were excluded under s. 4(2.2)(

c) were those assets acquired “before the commencement of cohabitation.” He found that the phrase “commencement of cohabitation” refers to the

date on which the common-law partners began living together in a conjugal relationship, rather than the date, three years later, on which the common-law relationship crystallized and they became common-law partners under The FPA . He found that this

interpretation is consistent with s. 4(3)(a), which includes the appreciation in value of any excluded asset that occurred while one common-law partner was cohabiting with the other common-law partner. V. THE POSITIONS OF THE PARTIES The Appellant’s Position 8 The appellant noted that The FPA does not apply to partners who cohabit, but do not register their relationship, if they cohabit for less than three years, in which case the only property claim is pursuant to the law of trusts.

He argued that, if the partners cohabit for more than three years, any claim for property acquired during the first three years is still pursuant to the law of trusts, while a claim for property acquired after that time is covered by The FPA . To come to this conclusion, he relied on a different

interpretation of s. 4(2.2)(

c) than that adopted by the motion judge, whose

interpretation, he said, was in error. 9 The appellant raised three arguments that, he said, support his

interpretation of The FPA . The appellant’s first argument was that the motion judge’s

interpretation failed to recognize and apply the defined meaning of the phrase “common-law partner,” as it is used in s. 4(2.2)(c). He noted that the

section makes specific reference to “asset[s] acquired by a common-law partner,” and that the parties, by legislated definition, were not “common-law partners” during the prerequisite three years. He argued that because the section, by definition, could not apply to the parties before they were common-law partners, it also could not apply to any assets that they acquired before they were common-law partners.

This leads to his position that the undefined word “cohabitation” must mean “cohabitation as common-law partners,” and that the effect is to exclude all assets acquired before they were common-law partners under The FPA . 10 The appellant’s second argument was that, in interpreting s. 4(2.2)(

c) as he did, the motion judge failed to consider the combined effect of that

section and s. 4(2.3), with the result that s. 4(2.3) is subsumed by s. 4(2.2)(

c) and becomes superfluous. He argued that the effect of the two sections together is supposed to be that assets acquired during the prerequisite three years are exempt from the accounting by s. 4(2.2)(

c) unless they are included under s. 4(2.3), that is, if they were acquired in specific contemplation of the common-law relationship. He argued that, if s. 4(2.2)(

c) is interpreted to include all assets acquired during the prerequisite three-year period, as was determined by the motion judge, then s. 4(2.3) would be superfluous because the assets that would otherwise be included under s. 4(2.3) would already have been included under s. 4(2.2)(c). 11 In his third argument, the appellant took the position that his

interpretation is consistent with the application of The FPA to married spouses. He noted that assets that are acquired before marriage are exempt from an accounting pursuant to s. 4(1)(c), and that s. 4(2) includes in the accounting two categories of assets that are otherwise exempt because they were acquired before the marriage.

The first is assets that are acquired while unmarried, but cohabiting immediately before marriage (s. 4(2)(a)), and the second is assets acquired before marriage, but in specific contemplation of cohabitation leading up to marriage, or acquired before cohabiting with the spouse, but in specific contemplation of marriage (s. 4(2)(b)). 12 The appellant argued that assets acquired during a period of cohabitation that precedes a marriage (the equivalent of the prerequisite three years for common-law partners) are only included in the accounting if they are acquired immediately before the marriage.

Those assets acquired during cohabitation, but not immediately before the marriage, are not included unless acquired in specific contemplation of the marriage. As an example, he argued that an engagement ring, being an asset given in contemplation of marriage, would be included in the sharing, while contributions made during the cohabitation into an ongoing pension plan would not be included because they were neither made in contemplation of the marriage nor immediately before the marriage. He took the position that, if the sharing of the assets starts from the moment of cohabitation, then s. 4(2)(

a) would be irrelevant and the word “immediately” would mean nothing. The Respondent’s Position 13 The respondent argued that the word used in s. 4(2.2)(

c) is “cohabitation,” and that the provision should be applied to exempt from the accounting only those assets acquired before the actual commencement of cohabitation. She took the position that the

section does not say “before the establishment of the common-law relationship,” and it should not be interpreted as if it did. She argued that the three-year period which defines a “common-law relationship” is relevant only to establish an entitlement to apply for an accounting. 14 Further, she argued that common-law partners who meet the requirements of The FPA are meant to have the same rights as married spouses, not to have greater rights, as would be the effect of the

interpretation argued by the appellant. Her use of the phrase “greater rights” was in reference to the right of the owner of assets to have them excluded from the accounting. VI. STANDARD OF REVIEW 15 The parties agree, as do I, that this appeal involves a question of law, and that the applicable standard of review is that of correctness. VII. ANALYSIS Principles of Statutory

Interpretation 16 It is necessary to begin any analysis of a statute with a consideration of the principles of statutory

interpretation. These were set out recently by this court in a decision by Scott C.J.M., for the court, in Fouillard v. Ellice (Rural Municipality) , 2007 MBCA 108 , 220 Man.R. (2d) 113 (at paras. 42-44 ):

Much has been written recently about the approach mandated by the application of the modern rule by the Supreme Court, but thestarting point in each instance is the seminal statement by Professor Elmer A. Driedger, Construction of Statutes, 2nd Ed. (Toronto: Butterworths, 1983) (at p. 87): ... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. As elaborated on recently, and in more detail, in Professor Ruth Sullivan’s restatement of Professor Driedger’s principle: There is only one rule in modern

interpretation, namely, courts are obliged to determine the meaning of the legislation in its total context,having regard to the purpose of the legislation, the consequences of proposed

interpretations, the presumptions and special rules ofinterpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant andadmissible indicators of legislative meaning. After taking these into account, the court must then adopt an

interpretation that isappropriate. An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with thelegislative text; (

b) its efficacy, that is, its promotion of the legislative purpose; and (

c) its acceptability, that is, the outcome isreasonable and just. [Driedger on the Construction of Statutes, 3rd Ed. (Toronto: Butterworths, 1994) at 131] This preferred approach is especially apt when considering the relationship between specific provisions within the same legislativeenactment. See Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, (SCC), [1998] 1 S.C.R. 27 … at paras. 20-23, whereIacobucci, J., for the court, observed: “It is a well established principle of statutory

interpretation that the legislature does not intend toproduce absurd consequences” (at para. 27) by, for example, enacting terms that are “incompatible with other provisions or with theobject of the legislative enactment” (Iacobucci, J., also at para. 27, referring to Pierre-André Côté, The

Interpretation of Legislation inCanada, 2nd Ed. (Cowansville: Yvon Blais, 1991) at 378-80). Rather, various parts of a statute are intended to work togetherharmoniously. To this end,

interpretations of a statute should attempt to integrate various parts of it into a coherent whole so long as thelanguage used reasonably leads to such a conclusion. This is especially so when the provisions deal with the same subject-matter. SeeCôté’s 3rd Ed. (Toronto: Carswell, 2000) at 342-343. This is often referred to as the presumption of coherence or the presumptionagainst internal conflict. See, for example, Friends of Oldman River Society v. Canada (Minister of Transport and Minister ofFisheries and Oceans), (SCC), [1992] 1 S.C.R. 3 … at 38. See R. v. Nabis, (SCC), [1975] 2 S.C.R.485 ….

If necessary, a departure from the ordinary meaning of the words may be utilized to reconcile the different parts of a statute soas to remain true to its overall purpose and object. 17 Thus, we are to consider the words that are used and the context in which they are used, the scheme of the Act and both theobject of the Act and the intention of the Legislature in enacting the legislation. The Object of The FPA and the Intention of the Legislature 18 The first legislation in Manitoba dealing with the accounting of family assets was The Marital Property Act, S.M. 1977, c. 48─ Cap.

M45, first enacted in 1977 (in force January 1, 1978), and replaced by S.M. 1978, c. 24 ─ Cap. M45 (The MPA), which waslimited to married spouses and assets acquired after, or in contemplation of, the marriage. That legislation did not apply to unmarriedcohabitants. Effective June 30, 2004, the Legislature amended The Vital Statistics Act to create the legal relationship of common-lawpartners for two unmarried people by permitting them to register their relationship.

At the same time, it amended The MPA to make thatlegislation applicable to those couples who had become common-law partners either by registering their relationship or by cohabiting forthree years. 19 In introducing the amendments to The MPA for first reading (Bill 53), the Minister of Justice and Attorney General reviewedthe inequities faced by common-law couples in relation to property rights, and he indicated that the purpose of the new legislation was totreat all Manitobans fairly and equally in the family law context.

He indicated that, in drafting the legislation, the government had beenguided by the recommendations of the separate reports submitted by the two members of the Common-law Relationships ReviewPanel. (See Manitoba, Legislative Assembly, Hansard, 37th Leg., 3rd Sess., vol. 66 (17 July 2002), Introduction of Bills(Hon. Gord MacKintosh).) In her final report, An Opinion Respecting Persons in Common-law Relationships, byJennifer A. Cooper, Q.C., vol. 1 (31 December 2001), Ms Cooper made the following recommendation (at p. 63): 40.

That section 4(1) and 4(2) [of The Marital Property Act] be amended to ensure that assets acquired outside of the marriage orcommon-law relationship are treated the same way. The Hon. A.C.

Hamilton, Q.C., LL.B., made a similar, though less specific, recommendation in his final report, Review Panel onCommon Law Relationships (20 December 2001) (at p. 62): I recommend, in the amendment or passage of any and all legislation, the Province of Manitoba provide identical rights and benefits toall married and common-law couples. 20 It is clear that the general thrust of the amendments to The MPA, which, in the process, was renamed The Family PropertyAct, was to give to common-law partners the same or identical property rights as those already enjoyed by married spouses. That beingthe case, any

interpretation of the legislation must include a comparison of the common-law and marital provisions of The FPA, whichare found in s. 4. Sections 4(1) and 4(2) of The FPA Regarding Married Spouses

21 The provisions regarding an accounting of the assets of married spouses acquired before marriage that are equivalent to those at issue here regarding an accounting of assets acquired before the crystallization of a common-law relationship are found in ss. 4(1) and 4(2). Under s. 4(1)(c), The FPA does not apply to any asset acquired by a spouse before marriage.

Section 4(2) then extends The FPA to include assets acquired by the spouse before marriage if they were acquired when that spouse was cohabiting with the other spouse immediately before their marriage (s. 4(2)(a)), or if the asset was acquired before, but in specific contemplation of, the cohabitation with, or the marriage to, the other spouse (s. 4(2)(b)). 22 As noted above, the appellant’s third argument was that the word “immediately” in s. 4(2)(

a) should be interpreted so as to refer to the date of the acquisition of the asset, and he gave the example of the engagement ring and the pension plan. The result would be that any assets acquired early in the cohabitation that preceded the marriage would not be included in the accounting (unless acquired in specific contemplation of the marriage), while those acquired close to the date of the marriage would be. In effect, he is arguing that s. 4(2)(

a) should be interpreted to read as follows: Notwithstanding clause (1)(c), this Act applies to any asset acquired by a spouse before marriage if the asset was acquired immediately before their marriage when the spouse was cohabiting in a conjugal relationship with the other spouse. 23 This

interpretation linking the word “immediately” to the acquisition of the asset introduces uncertainty into the application of the legislation. The court would have to determine what constitutes “immediately” before the marriage. Is it days, weeks, months, or years? Does it depend on the nature of the asset or of the relationship? 24 The alternative

interpretation of s. 4(2)(a), and one that avoids these uncertainties, is that the word “immediately” refers to the temporal relationship between the period of cohabitation and the date of the marriage, rather than the date of the acquisition of the asset and the date of the marriage. On this

interpretation, it is the period of cohabitation that must occur immediately before the marriage and not the acquisition of the asset. 25 This

interpretation of the word “immediately” is consistent with its dictionary meaning. For example, The Shorter Oxford English Dictionary , 3rd ed., defines “immediately,” in part, as: …. 2. With no person, thing, or distance intervening in time, space, order, or succession …. 3. Without any delay; instantly …. (See also, Black’s Law Dictionary , 8th ed., sub verbo “immediately.”) 26 This

interpretation is also consistent with the order in which the words appear in the section, which reads as follows: Notwithstanding clause 1(c), this Act applies to any asset acquired by a spouse before marriage if the asset was acquired when the spouse was cohabiting in a conjugal relationship with the other spouse immediately before their marriage. 27 On this

interpretation, the effect of the word “immediately” would be to include in the accounting any asset acquired before marriage if it was acquired during a period of cohabitation that occurred immediately before the marriage. Thus, if the parties had cohabited for one or more periods, but had separated prior to the marriage, any assets acquired during the earlier periods of cohabitation would not be included in the accounting (unless acquired in specific contemplation of the marriage). This

interpretation is preferable to that proposed by the appellant as it provides a crystallization date for the determination of which assets will be included in the accounting and it is more consistent with both the definition and use of the word “immediately” and the order of the wording of the section. 28 Using this

interpretation of s. 4(2)(a), an accounting of the assets of married spouses would include all assets acquired after the date of marriage, all assets acquired during the period of cohabitation that immediately preceded the marriage and any assets that were acquired in specific contemplation of either the marriage or the immediately preceding cohabitation. 29 Is this

interpretation of s. 4(2) consistent with the legislation as it relates to common-law partners? A Comparison of Sections 4(2) and 4(2.2)(c) 30 If the appellant’s

interpretation of s. 4(2.2)(

c) is adopted, the assets of non-registered common-law partners included in an accounting would be only those acquired following the prerequisite three years and any assets acquired in specific contemplation of their common-law relationship, but would not include any assets acquired during the prerequisite three years if they were not acquired in specific contemplation of their common-law relationship. 31 The same result would occur if registered common-law partners cohabited for less than three years and registered their relationship.

Any assets that either partner acquired during cohabitation, but prior to the registration of their relationship, would not be included in the accounting unless they were acquired in contemplation of the common-law relationship. 32 With the appellant’s

interpretation, both registered and non-registered common-law partners would not be treated the same as married spouses and they would not have identical property rights.

This is because, contrary to the situation for married spouses, the accounting by common-law partners would not include any assets acquired during that period of cohabitation that immediately preceded the crystallization of their common-law relationship if it could not be shown that those assets were acquired in specific contemplation of the common-law relationship. 33 Further, assets acquired “immediately” before the crystallization of the marriage would be included in the accounting by married spouses under the appellant’s

interpretation of s. 4(2)(

a) whether or not they were acquired in contemplation of the marriage, but there would be no equivalent provision regarding assets acquired by common-law partners immediately before the crystallization of the common-law relationship, unless those assets were acquired in specific contemplation of that relationship.

34 This inequitable result does not accord with either the object of The FPA or the intention of the Legislature in enacting The FPA . 35 If the motion judge’s

interpretation of s. 4(2.2)(

c) is adopted, an accounting regarding the assets of common-law partners would begin at the date of the commencement of cohabitation to include all assets acquired from that date and, as well, any assets acquired prior to, but in specific contemplation of, their common-law relationship. With this

interpretation, the period of time to be included in the accounting would be the same whether the parties subsequently married, registered their relationship, or became non- registered common-law partners, putting the partners in the same position whether they were married spouses or common-law partners.

There would also be the added benefit of a fixed, specific crystallization date, being the commencement of cohabitation, which would reduce the uncertainty in the application of the legislation. 36 Further, there would be no issue of unequal treatment of assets acquired “immediately” before the crystallization of the relationship. 37 This result does accord with both the object of The FPA and the intention of the Legislature in enacting The FPA . Effect of Section 4(2.2)(

c) on Section 4(2.3) 38 The appellant’s second argument was that, if s. 4(2.2)(

c) is interpreted as found by the motion judge, s. 4(2.3) would have no meaning.

This is not the case as, in fact, it would still apply to include otherwise excluded assets in at least two situations: - first, where the non-registered common-law partners acquired those assets prior to the commencement of the prerequisite three years, but in specific contemplation of that relationship, those assets, which would otherwise be excluded, would be included in the accounting; and - second, where the registered common-law partners acquired those assets before commencing cohabitation, but in specific contemplation of that relationship, and then registered their relationship before the expiration of the prerequisite three years, those assets, which would otherwise be excluded, would be included in any accounting.

This corresponds with the inclusion of assets acquired in specific contemplation of marriage or the immediately preceding cohabitation found in s. 4(2)(

b) as regards married spouses.

Interpretation of Section 4(2.2)(c) – “Assets acquired by a common-law partner ” 39 The appellant’s third argument was that the motion judge’s

interpretation fails to recognize that certain words have a legislated meaning, and he failed to apply that meaning. He argued that s. 4(2.2)(

c) could not apply to assets acquired before the event that created the common-law relationship because the legislation refers specifically to “asset[s] acquired by a common-law partner,” and the partners were not “common-law partners” at the time of the acquisition of any assets acquired during the prerequisite three years. However, if one looks at the equivalent provision for married spouses, being s. 4(1)(c), the equivalent wording is used; that is, that

section refers to “any asset acquired by a spouse … while unmarried.” If looked at from the perspective of the date of the acquisition of the asset, any asset acquired by a person, while he or she was unmarried, was also not acquired by a “spouse.” 40 It is clear that the legislation is referring to the status of the parties at the date of the accounting. From that vantage, it is looking at the timing of the acquisition of the assets acquired before the crystallization of the relationship and that are still owned at the time of the accounting, which follows the crystallization of the relationship.

In this way, it is logical to refer to assets owned by a spouse before marriage as being “assets acquired by a spouse while unmarried” and to refer to those assets owned by a common-law partner before the crystallization of the common-law relationship as being “assets acquired by a common-law partner.” Section 4(3) 41 Finally, the motion judge referred briefly to s. 4(3) as supporting his

interpretation of s. 4(2.2)(c). Section 4(3) deals with the appreciation, depreciation and income from assets of a spouse or common-law partner. It is not germane to the issue that was before the motion judge. Given that s. 4(3) was mentioned only very briefly by the motion judge, not raised at all in the written material, referred to only very briefly by appellant’s counsel in oral reply and not addressed at all by respondent’s counsel, it is neither necessary nor appropriate to consider it on this appeal. Other Cases 42 The only other case that has touched on the

interpretation of s. 4 of The FPA is Field v. McLaren , 2009 MBQB 118 , 239 Man.R. (2d) 156 , a decision of Douglas J. (as she then was). In that case, the parties were found to have cohabited in a common-law relationship from the spring of 2001 to July 11, 2006, and so were in a common-law relationship under The FPA . Prior to 2001, they had lived together for three earlier periods, each of less than three years in duration, and they had acquired assets during prior periods of cohabitation and prior separations. Justice Douglas recognized the difficulty with the use of the word “cohabitation” in s. 4(2.2)(

c) and considered the effect of the equivalent provisions in s. 4(2)(

a) for married spouses. In paras. 64 to 68, she concluded as follows: - first, that, pursuant to s. 4(2)(a), married people had to account for only those assets acquired during the period of cohabitation that occurred immediately before the marriage; and - second, that the intention of the Legislature was to only include in the accounting those assets acquired during the qualifying periods of cohabitation, being those periods of at least three years or more, and that the relevant period of time regarding the acquisition of assets included the prerequisite three years.

VIII. CONCLUSION 43 In

summary, the appellant’s

interpretation of s. 4(2.2)(

c) and the meaning of the word “cohabitation” are not consistent with the principles of statutory

interpretation. Firstly, it does not accord with the object of The FPA , being to give common-law partners the same, or identical, property rights to those of married spouses. Secondly, it does not respect the words of the statute in the order in which they appear in the legislation. Thirdly, his argument that the motion judge’s

interpretation does not respect the legislated meaning of defined terms is incorrect. 44 By comparison, the

interpretation adopted by the motion judge is consistent with the principles of statutory

interpretation. It results in common-law partners receiving the same property rights that are available to married spouses, it respects and applies the words of the statute in the order in which they were enacted and it does not fail to apply the defined terms in the context of their legislated meaning. 45 Further, the word “immediately” in s. 4(2)(

a) refers to the temporal relationship between the period of cohabitation and the date of the marriage and not to the acquisition of the assets in relation to the date of marriage. 46 Finally, it is clear that the prerequisite three years of cohabitation are relevant only to establish an entitlement to an accounting and valuation, in the same way as marriage or the registration of a common-law relationship establish an entitlement to an accounting and valuation.

In all three cases, once the entitlement arises, all assets acquired during the immediately preceding period of cohabitation are included in the accounting and valuation, which, in this case, would be all assets acquired from and after June 18, 2000. 47 For these reasons, I have concluded that the motion judge was correct in his

interpretation of s. 4 of Th e FPA as it applies to common-law partners. IX. DISPOSITION OF THE APPEAL 48 The appellant has not convinced me that the motion judge erred in his

interpretation of s. 4 of The FPA as it applies to common-law partners. I would, therefore, dismiss the appeal, with costs to the respondent. __________________________ J.A. I agree: __________________________ J.A. I agree: _________________________ J.A.