In Ontario, there is a deadline for spouses to claim an equalization payment after separation. In the case of Martynko v. Martynko, the couple were married in 1997 but separated in 2002. The husband paid the wife $50,000 so she could buy herself a house to live in, as per their separation negotiations. In 2003 they signed a handwritten confirmation of what they called an ‘out of court settlement’. At this time, the wife set up a separate bank account and began sleeping in a separate bedroom until her new home was finished being built.
In 2006, the husband started the divorce proceedings, which the wife did not defend despite being properly notified. The divorce was granted that same year, and the husband remarried in 2008. Shortly after, in August of 2008, the wife brought a court action under the Family Law Act for division of property and spousal support.
The husband pointed out that the Ontario law provides for a statutory limitation period for applications of this nature: the wife was required to bring her claim within 6 years from ‘the day the spouses separate and there is no reasonable prospect that they will resume cohabitation’.
The Court had to determine whether the wife was out of time. Using the well-established legal tests to determine when a couple is considered to be ‘separated’ for legal purposes, it was found that the marriage ‘died’ when the husband made the $50,000 payment to the wife in 2002. Therefore, for Family Law purposes, the separation date was in 2002 and since more than 6 years had passed at the time the wife brought her equalization application, she was too late.