Property Division, Sharing & The Matrimonial Home Spousal Support & Alimony

Wife in State of “Blameless Ignorance”; Eight-year Delay in Seeking Rights Excused

Wife in State of “Blameless Ignorance”; Eight-year Delay in Seeking Rights Excused

A recent case before the Ontario court involved two separated spouses who were very lax about unwinding their legal and financial affairs. The court had to determine whether the wife had run out of time for doing so.

The husband and wife were married in 1971, and had four children. The wife left the matrimonial home around 2000, but did not start proceedings for spousal support and division of family property until eight years later, in 2008. Despite being properly served with the court materials, the husband did not defend the proceedings whatsoever. The court eventually awarded the wife her spousal support entitlement in 2011.

However, the question of the division of net family property remained a live issue. Unbeknownst to the wife, she had a time-limit: under s. 7(3) of the Family Law Act, the deadline for her to bring an application for division of net family property expired in 2006, being six years after the 2000 separation. The wife brought a motion to extend the time for taking that step. Once again, 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; the court had the power to do under s. 2(8) of the Family Law Act, provided that the three tests specified in that legislation were met. The tests were whether:

1) there are apparent grounds for relief;

2) the wife’s delay was incurred in good faith; and

3) the husband would suffer no substantial prejudice because of the wife’s delay.

As a preliminary point – and despite some quibbling by the parties on the issue – the court confirmed that the separation date, being the point after which there was no reasonable prospect of reconciliation, could be pegged as July 1, 2000. Two isolated occasions on which the parties had sexual intercourse, occurring in 2006 and 2009, did not amount to a “reconciliation”. Therefore, the six-year limitation period had indeed expired by 2008.

Next, applying the first element of the three-prong test, the court found there were “strong grounds” in this case for allowing the wife to continue with her application, even if the limitation period had technically expired.

Specifically, the wife had a good legal claim for equalization of family assets; she had merely left it too long before claiming for it. 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, which was causing her to become depressed. Finally, the court considered the fact that the husband did not respond to either the application, or to the motion to extend time.

The first branch of the test was accordingly met.

Next, the second branch was satisfied as well: the court found that the wife at all times had acted honestly, and with no ulterior motive. The court found that she was in a state of “blameless ignorance”, and had never sought legal advice in the eight years since separating from the husband.

Finally, the court considered the third question, of whether the husband had suffered prejudice. 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 determined as of July 1, 2000 and was completely unaffected by the passage of time. The court also considered the husband’s failure to respond to any of the court materials as being reflective of the lack of prejudice to him.

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. Our lawyers and staff at Russell Alexander, Family Lawyers can provide timely advice and to your individual rights, and how and when to pursue them.

For the full-text of the decision, see Duncan v. Duncan, 2011 ONSC 2078

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.