BACKGROUND
The Applicant Husband and the Respondent Wife were married in 2009 and separated in 2019. They signed a Separation Agreement thereafter in 2019 dealing with all issues and they were divorced in 2022. The Respondent Husband consulted with a lawyer in 2020 regarding the Separation Agreement as he was unhappy with the property settlement. He did not take any further steps after this consultation. The parties then signed a further Amending Agreement in 2021, followed by signing a Debt Acknowledge Form in the same year. Neither party obtained independent legal advice for any of the agreements, nor was there a substantive exchange of financial disclosure. The Applicant Husband then consulted a lawyer again in May 2024 regarding the agreements, and he filed an Application to set aside the Separation Agreement in October 2024. He further sought to extend the limitation period on making an equalization claim, as it had expired eights month prior to bringing the Application.
ISSUES
- Should the 2019 Separation Agreement, 2021 Amending Agreement or the 2021 Debt Acknowledgment Form be set aside?
- If the answer to the above is yes, should the limitation period to make an equalization claim be extended?
ANALYSIS
The Separation Agreement, Amending Agreement and Debt Acknowledgement
The Applicant Husband argued that he was pressured into signing the original 2019 Separation Agreement and that he did not comprehend the agreement fully due to a limited English proficiency and mental vulnerability. The Court concluded that the Applicant Husband’s positions were untenable.
While it is true that neither party had obtained independent legal advice for the 2019 Separation Agreement, the Applicant Husband had consulted a lawyer a year later regarding its contents, but did not seek to overturn the agreement. Further, when the parties renegotiated the child support and parenting provisions and created the 2021 Amending Agreement, they again did not exchange financial disclosure. While the Amending Agreement did not contain certificates of independent legal advice, the Court noted that the Applicant Husband did receive advice on edits to the Amending Agreement from a lawyer. He received these services by virtue of being member of a Legal Shield program.
The parties then signed the 2021 Debt Acknowledgment Form without legal advice, setting out a $18,500 payment from the Applicant Husband to the Respondent Wife. However, the Court pointed out that the Applicant Husband then signed two Affidavits in 2021 as part of the parties’ joint divorce Application, wherein he attested that he did not wish to claim a division of property. Moreover, he also attested that he was aware that making any such claims would be impossible due to the Separation Agreement. These factors together militated agaisnt the Applicant Husband not understanding the various agreements he signed and their effects.
The Court then declined to rule on the point of whether to set aside the Separation Agreement. They resolved to deal only with whether the Applicant Husband could make an equalization claim at all given the expired limitation period.
The Extension of the Limitation Period to Make an Equalization Claim
The Court noted that though the Applicant’s request to set aside the Separation Agreement was not subject to a limitation period, his subsequent claim for equalization did have a limitation period of two years after the parties divorced. The limitation period had therefore expired at the time the Applicant Husband launched his Application.
Though section 2(8) of the Family Law Act allows the Court to extend the limitation period for an equalization claim, the Court determined that it was inappropriate to do so in this case. This was because there was no delay in bringing the claim which could be said to have been incurred in good faith.
The Court ruled that there was ample evidence that the Applicant Husband understood the 2019 Separation Agreement. For one, he had testified that he and his children benefitted from the deal, which is why he signed the Agreement. The Applicant Husband also brought his Application shortly after an argument with the Respondent Wife’s boyfriend- suggesting there may have been an ulterior motive for his Application altogether.
The Applicant Husband also demonstrated willful blindness, as he consulted with a lawyer on the agreement in 2020 and choose to do nothing thereafter. He also clearly had a strong enough comprehension of English to properly read the agreements, having graduated from Mohawk College in an English language program. The Applicant Husband simply never further inquired about the contents of the 2021 Debt Acknowledgment Form, nor the Affidavits he swore for the Divorce Application in the same year.
The Court also ruled that the Applicant Husband was careless about his obligations. After learning of the limitation period in May 2024, he proceeded to go on vacation and wait months before finally launching the Application. Lastly, his evidence regarding his ADHD and depression as impairing his ability to bring an Application without delay, was not convincing. The letters he produced from medical professionals were vague and highlighted many symptoms which were self-reported rather than from an objective assessment.
CONCLUSION
As the Applicant Husband did not incur a delay in bringing his Application in good faith, the Court ruled they could not extend the limitation period. As such, the Applicant Husband’s claim for equalization was statute barred.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel's time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.