A person recently came to me with a problem in relation to her father and her stepmother. Her father and stepmother have been separated for twenty years. They negotiated a separation agreement, but never signed it. However, they did get an uncontested divorce ten years ago. Her father died a year ago and did not leave anything to her stepmother. Now her stepmother wants an equalization payment from the marriage. However, in this situation, the daughter has nothing to worry about.
In Ontario, the rights of married couples in relation to the In cases where there is a valid separation agreement, one should always look there first to answer any questions arising from the separation. However, as I explain in this podcast and this video, for a separation agreement to be valid, it must be in writing, signed and witnessed. Because the father’s separation agreement was not signed, it is not valid. As such, the property rights arising from his separation are governed by Part I of the Family Law Act.
Most legal claims in Ontario are subject to limitation periods. That means there is a fixed period in which a person can sue in relation to the claim, and once that period is over, the claim “expires” and the person loses all rights to make the claim unless it is already in court. Family Law property claims are no exception. Separated spouses have to make their claims within a time limit, or they lose the right to make the claim forever.
There is a limitation period for making a claim to equalize the spouse’s net family properties after a marriage. That limitation period is found in section 5 of the Family Law Act. Under s.5(3), a spouse cannot bring a claim for equalization after the earliest of three events:
a) The two-year anniversary of the date of the divorce judgment (if the spouses were divorced);
b) The six-year anniversary of the date of separation;
c) The six-month anniversary of the death of the other spouse.
As section 5 makes clear, once the first of these three happens, the spouse is barred from making a claim. In your case, the first of the three events to happen was the passage of six years since the date of separation. As such, your father’s former spouse is barred from making an equalization. In general, the limitation contained in s.5(3)(c) applies when the death of a spouse causes the end of the relationship. Because of the language of s.5(3), your father’s death will not ‘restart the clock’ and give his former spouse a further 6 months to make a claim. Since his spouse is barred from making a claim to his property, he can deal with it as he sees fit, either during his lifetime or through his will. Of course, if he devises or bequeaths any property to his former spouse in the will, she will be entitled to it notwithstanding her inability to bring an equalization claim.
Even if you are not married, but are living common-law, and you think you have “common-law property claims to make”, which are hard to make in the first place, there are still limitation periods that apply. You have two years to make a claim in relation to any form of assets or possession, and ten years to make a claim in relation to real estate or real property.
To learn even more about property division, equalization and limitation periods in family law, you may want to get a copy of this best-selling easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You can also use the search on the right to find lots more articles about marriage and divorce. This site has hundreds of pages with important family law information to keep you out of trouble.
“Limitation Periods” are something that not many people know exists in family law, but they do. There are also lots of other peculiar laws that can affect your situation that you probably do not know about. Those laws, and the problems they can cause, are one of the reasons you need to speak with a good, experienced, family lawyer before taking any action and to make sure you are not taking too long to take action. Otherwise, you may make one of several avoidable big family law mistakes that can cost you thousands of dollars (or maybe your kids) A family lawyer can give you advice on family law options that could save your marriage, or protect you if your marriage is beyond saving. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).
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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.
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