Extending Limitation Period for Equalization: Duncan v. Duncan

This case deals with an Applicant’s desire to extend the limitation period for her claim for an equalization payment.  Justice Kershman identified the sole issue to be decided as whether the Applicant should be granted an extension of time to apply for an equalization of net family property.

The parties in this case are both 61 years of age and have four children, all of whom are over the age of 21.  The Applicant brought an Application in September of 2008 in which she made claims for spousal support and the equalization of net family property.

The husband was properly served with the Application, yet he provided no Answer to same.  The Applicant then brought a motion to extend the time for the division of net family property and spousal support in December of 2009.

Once again, the husband was properly served and failed to respond to the motion.

Justice Kershman began his decision by attempting to ascertain the date of separation, as there was confusion surrounding same.  The date of separation was relevant in order to commence the running of the clock for the equalization claim.  The Applicant seemed to alternate between July 1, 1999 and July 1, 2000 when discussing the date of separation in her materials, however based on a notation from the Applicant’s Doctor on June 2000, which stated that the Applicant moved in with a friend during that month, Justice Kershman deemed the date of separation to be July 1, 2000.

Once the date of separation had been determined, Justice Kershman then went on to analyze whether the Applicant satisfied the test to extend the limitation period.  Firstly, and pursuant to s. 7(3), Justice Kershman stated that an application for division of property and equalization cannot be brought after the earliest of: (a) two years after a divorce order or annulment; (b) six years after a separation with no reasonable prospect of resumed cohabitation; and (c) six months after the first spouse’s death.

The test for the extension of times can be found under s. 2(8) of the Family Law Act which states that the court may extend the time if it is satisfied that: (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

When applying the above mentioned test to the facts of this case, Justice Kershman found that the Applicant satisfied all three branches of the test because:

  • Her claim for relief was meritorious given the fact that she is seeking an equal division of net family property in respect of a long-term marriage during which she and the Respondent had four children and when the Applicant left the matrimonial home and the marriage, she took nothing with her besides “the clothes on her back.”  As such, there are strong grounds for relief;
  • The delay was incurred in good faith and with no ulterior motive as the Applicant was in a state of blameless ignorance especially given the fact that there was no evidence that she had sought legal advice during the limitation period; and
  • There will be no prejudice suffered by either party on account of the delay as the only significant property relating to the Applicant’s claim is the husband’s pension and the division thereof and the Court was satisfied that the passage of time had no effect on the value of same to the parties.  Additionally, the Respondent did not file any responding materials in which he alleged prejudice on account of the delay.

Therefore, an extension was ordered, but the Applicant was not entitled to costs since she was responsible for the delay.

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