My name is Andrew Feldstein, and today I am speaking to you about extending the limitation period for bringing an application for equalization.
A party may be prevented from bringing an application for equalization if they bring the application outside of the statutory limitation period. It is therefore extremely important that parties in a family law dispute be aware of the relevant limitation periods.
Pursuant to the Family Law Act, an application for equalization shall not be brought after the earliest of:
- Two years after the day the marriage is terminated by divorce or judgment of nullity;
- Six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; or
- Six months after the first spouse’s death.
However, the court may, on motion, extend a time prescribed by the Family Law Act. In order to be granted this extension, you must present compelling evidence that explains why you have brought the application for equalization after the expiry of the limitation period.
The court may grant the extension if it is satisfied of the following three criteria:
- First, there must be apparent grounds for relief. The “relief” does not refer to the extension of time sought by the moving party on the motion, but to the relief sought on the prescribed claim.
- Second, relief must be unavailable because of delay that has been incurred in good faith. To establish good faith, you must establish that you have acted honestly and without any ulterior motives for bringing the application outside the limitation period. Ignorance of the limitation period is enough to determine that the delay in bringing the application was incurred by you in good faith. There should also be no evidence that you sought legal advice during the limitation period.
- Third, no person will suffer substantial prejudice by reason of the delay. Where the other party would become prejudiced because of your delay in bringing the application, courts generally will not grant the extension of the limitation period.
To learn more about Feldstein Family Law Group’s services and client care, visit our website at www.separation.ca. If you need advice on your own family law matter, please call us at 905-415-1636 to schedule an initial consultation. We’re always happy to assist.
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