Equalization Claims: Limitation Periods
The Family Law Act lays out the limitation periods as follows:
(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,
(a) Two years after the day the marriage is terminated by divorce or judgment of nullity;
(b) Six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;
(c) Six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3).
Cases such as Horner v. Horner, Rae v. Rae, Hart v. Hart, and El Feky v. Tohamy, canvas the issue of a court using its discretion to allow for an extension of the above-cited limitation periods.
Generally, the case law suggests that judges will determine whether the applicant, in an application to extend the limitation period, has acted in good faith.
As section 2(8) of the Family Law Act explains,
(8) The court may, on motion, extend a time prescribed by this Act 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.
Ontario jurisprudence has also dealt with the issue of whether the negligence of the applicant is considered to be acting in bad faith.
In Hart v. Hart, the Court stated:
Section 2(8) (b) enshrines in legislative form the concept of 'good faith'. As is not infrequently the case, these words are not defined in the Act, and I do not believe that it would be either possible or useful to attempt to catalogue the possibilities that they embrace. However, I must attribute to these words their "plain meaning according to the understanding and practices of the times": Cash v. George Dundas Realty Ltd.[1973], 1 O.R. (2d) 241 (CA). I believe, to establish 'good faith', it must be shown that the moving party acted honestly and with no ulterior motive it does not seem to me that the Legislature, anticipating the general newsworthy nature of the family property provisions or the Act, intended that the mere failure to make inquiries should necessarily negate 'good faith', provided that the absence of enquiry does not constitute willful blindness or does not otherwise, in all of the circumstances, fall below community expectations. As I have stated, my assessment of the evidence is that the wife was ignorant of her rights under the Act, and I believe that her state of mind was one of blameless ignorance. I am satisfied that the delay in issue was delay incurred in good faith within the meaning of the Section 2(8) (b).
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