Only a Current Spouse Can Make a Claim for Division of Family Property

Hunter v McCorriston , 2016 SKCA 144

The case of Hunter v McCorriston has important implications for a spouse seeking to bring a claim for a division of family property.

Here, the spouses had signed a prenuptial agreement prior to the marriage providing that Ms. Hunter would retain the family home upon dissolution of the marriage and that each party would retain as his or her property any family property which that party had brought into the marriage and any increase in its value. Ms. Hunter treated the property as though it had been dealt with pursuant to the agreement and did not claim for property in her petition. Mr. McCorriston’s lawyer served Ms. Hunter’s lawyer with an answer but did not file it with the Court. In the answer, he opposed Ms. Hunter’s application for exclusive possession of the family home because it would conflict with his desire for custody of the children, but he said nothing regarding her claim that the other family property be divided as per the agreement.

Various issues arose between the parties during divorce proceedings including issues regarding custody, child support, and exclusive possession of the family home. In May of 2014, Ms. Hunter served an application for judgment, asking that the matter be determined as an uncontested proceeding to be heard on the basis of affidavit evidence. A short time later, as per her request, Ms. Hunter’s application for divorce was granted and the balance of the relief sought in her petition was adjourned sine die.

The parties then proceeded through the pre-trial conference process regarding the outstanding issues. After several adjournments, a pre-trial conference took place. And all the while, Mr. McCorriston did not intend to proceed as though the property had been dealt with under the prenuptial agreement; he intended to make a claim for a division of family property pursuant to The Family Property Act. But while Mr. McCorriston had advised his lawyer of his desire to file a counter-petition advancing a claim for family property and while he treated property division as an issue throughout all of the negotiations, this issue didn’t actually get filed before the courts until 19 months after the parties were divorced.

At this time, Mr. McCorriston sought to claim for division of family property, even though the divorce had occurred 19 months earlier. Mr. McCorriston claimed that the “slip” in not actually filing for division of property was only a “formality” and could be cured by Rule 1-6 of the Queen’s Bench Rules or alternatively by the doctrine of nunc pro tunc. While the Chambers Judge upheld this argument and allowed him to claim for property division on the basis of both Rule 1-6 and the doctrine of nunc pro tunc, the Court of Appeal overturned this decision.

The Court of Appeal looked first to Rule 1-6 of the Queen’s Bench Rules. Rule 1-6(1) says that if a person contravenes or does not comply with the Rules, they may apply to the Court to cure the contravention, non-compliance, or irregularity. The Court of Appeal clarified that this Rule only empowers a judge to cure procedural defects; it does not apply to cure non-compliance with the substantive law or to cure the failure to exercise a right under statute.

Under section 2 of The Family Property Act, only spouses can rely upon sections 21 and 22 of that Act to bring a claim for a division of family property. This section defines a “spouse” as follows:

“spouse” means either of two persons who:

(a) at the time an application is made pursuant to this Act, is legally married to the other or is married to the other by a marriage that is voidable and has not been voided by a judgment of nullity;

(b) has, in good faith, gone through a form of statutory marriage with the other that is void, where they are cohabiting or have cohabited within the two years preceding the making of an application pursuant to this Act; or

(c) is cohabiting or has cohabited with the other person as spouses continuously for a period of not less than two years;


Very significant is that the legislation requires the spouse to be a spouse “at the time an application is made pursuant to this Act”. At the time of Mr. McCorriston’s application, the parties were divorced, not spouses as the legislation requires. Therefore, Rule 1-6, which cures only procedural defects, could not cure this error to assert the right within the time prescribed by the statute.

The Court then turned to Mr. McCorriston’s alternative argument that he be granted leave nunc pro tunc under the inherent jurisdiction of the Court of Queen’s Bench. In this context, the doctrine of nunc pro tunc provides that the Court has jurisdiction to open up or amend proceedings even after the divorce judgment is issued without setting aside the divorce. However, this argument was also rejected. The prerequisites for setting aside a default judgment based on this principle are two-fold: that the delay be accounted for and that a sufficient case on the merits be satisfactorily demonstrated. Mr. McCorriston had not explained why he failed to file an answer or counter-petition, nor did he explain his delay in bringing his application for leave to do so. He also never objected to Ms. Hunter’s statement that she was entitled to the family property. While he did object to her statement of entitlement to the family home this was only because it would conflict with his custody. His argument that the pre-trial conference materials should be included to explain the delay was therefore also rejected as the Court found that there was no compelling reason to override the presumption of inadmissibility of these settlement materials.

Hunter v McCorriston highlights that the right to bring a claim for division of family property is a right that the Legislature has provided only to “spouses”, that is to spouses who are legally married at the time of the application or who are “cohabiting as spouses” under the definition set out in The Family Property Act. Unless expressively empowered to do so, the Queen’s Bench Court may not use its Rules to reinstate a right which the Legislature has taken away by statute.

This means that a spouse must file a petition or counter-petition advancing a claim for division of family property while they are still a spouse. It is essential that a spouse who may want to claim for a division of family property do so before they are divorced or before two years since the time they have cohabitated has passed. Otherwise, as Mr. McCorriston found out the hard way, that former spouse may have to bear the consequence of their failure to claim for property division while still a spouse.