In Ontario family law, time-limits are always something to keep in mind. Previously I have written about cases where a spouse may have waited too long to claim for support Despite Man’s Four-Year Delay and Significant Means, Woman Ordered to Pay Him Spousal Support Pending Trial. I have also written about cases involving the concept of a “constructive trust”-based claim Son-In-Law Gets Lifelong Licence to Use Mother-in-Law’s Portion of Family Island which usually involves a common-law spouse who is making a claim for a legal interest in a home that is solely owned by the other spouse, in circumstances where the first spouse has invested time or money into the home and will otherwise get no credit upon separation for doing so.
A recent Ontario decision considers both of these topics at once, specifically: What are the time-limits for one party in a family law matter to bring a constructive trust-based claim against another?
The facts in McConnell v. Huxtable, the couple lived together in a common law relationship for 13 years. During that time, the man had bought and sold two homes, each time putting title in his own name alone. He bought a third one in 2007, which was also in his name. When the couple decided to split up, he denied that the woman had made any contribution to the latest home, or that it was purchased as part of any sort of joint investment.
The woman waited until five years later – in 2012 – to get a court declaration that she was entitled to an interest in the home, based on a “constructive trust” argument. (This would involve a court acknowledging, based on principles of equity and fairness, that despite being a non-title-holding spouse she should be declared entitled to interest in the land, based on her financial and other contributions to it over the years). Alternatively, the woman claimed for monetary damages in compensation.
The problem was this: In Ontario, there are two statutes which prescribed deadlines for various types of actions: 1) the Limitations Act, 2002, which sets a two-year deadline; and 2) the Real Property Limitations Act, which has a 10-year deadline. If the first statute applied to these circumstances, then she was out of time. If the second statute applied, then she was still eligible to bring her claim.
The court had to closely evaluate the language of both Acts. Since the Real Property Limitations Act – with its more general time-limit – only governed actions designed to “recover land”, the primary question was whether either her family law-based constructive trust or her alternative claim for damages fell within this definition.
The court held that the monetary damages claim did; the constructive trust claim was uncertain. In fact, there was actually a gap in the coverage of these two Acts: neither of them appeared to address the deadline for bringing the type of family law-based, land-related constructive trust claim that the woman had launched in this case.
As a result, and since a deadline for this kind of claim had not been imposed by either statute, the court was entitled to use its equitable jurisdiction to craft an appropriate time limit in the woman’s particular case. In its reasons the court also invited the Ontario Legislature to take steps to fill the legislative void.
What is the message here? Don’t delay!
In this case, the woman’s 5-year delay in bringing her claim was (miraculously) saved by a complicated legal argument, and one that resulted in her matter apparently slipping through the legislative cracks to the point that technically she was not out of time.
But others will not be so lucky, and most people will not want to use their time and money to go to court to find out whether they are among the lucky ones.
For the full text of the decision,
McConnell v. Huxtable, 2013 ONSC 948 http://canlii.ca/t/fw2wh