In a case before the Ontario court, two separated spouses were very lax about unwinding their legal and financial affairs and the Court had to determine whether the wife had run out of time for doing so. Unbeknownst to the wife, under s.7(3) of the Family Law Act, her deadline for bringing an application for division of net property expired. The wife brought a motion to extend the time for taking that step and the husband did not appear or file any materials on that motion.
The question before the Court was whether it should extend the wife’s deadline. Under s.2(8) of the Family Law Act, the court had the power to do so and provides three tests:
- there are apparent grounds for relief;
- the wife’s delay was incurred in good faith; and
- the husband would suffer no substantial prejudice because of the wife’s delay
Applying the first element of the three-prong test, the Court found that there were strong grounds for allowing the wife to continue with her application, even if the limitation period had technically expired. Specifically, the wife had a strong legal claim for equalization of family assets. Also, this was a long-term marriage that produced four children, and the wife had left the matrimonial home in 2000 with only the clothes on her back in order to escape the husband’s abuse and alcoholism. Finally, the Court considered the fact that the husband did not respond to the motion at the time nor did he respond to a previous application. The first branch of the test was accordingly met.
The second branch was satisfied as well as the Court found that the wife at all times had acted honestly, and with no ulterior motive. She was found to be in a state of ‘blameless ignorance’ and had never sought legal advice in the 8 years since separating from the husband.
Finally, the Court considered the third question. In this case, the only real asset that was potentially affected by the wife’s delay was the husband’s pension. However, according to the law, its value was to be determined and set on the date of the separation, not after. Therefore, no matter how long the wife delayed in bringing her application, the pension value was completely unaffected by the passage of time.
As a result, the Court found the three-pronged test for granting an extension had been met and allowed the wife to continue her application for division of Net Family Property. On the facts of this particular case, the Court showed tolerance of the wife’s delay in seeking her rights after separation. However, deadlines are normally very strict and it can be costly to go to Court to try to get them extended.