Elizabeth Gail Atwill v. Fleming Kyle
(Ontario) (Civil) (By Leave)
Limitation of actions - Judgments and orders - Limitation of actions — Judgments and orders — Declaratory judgments — Family law — Domestic contracts — Enforcement — Applicant relying on domestic contract executed by parties prior to marriage releasing each other from claims for equalization of net family property and spousal support, to defend against respondent’s claim for spousal support and equalization — Whether Court of Appeal erred in holding that a claim to set aside a domestic contract was a proceeding for a declaration with “no consequential relief” and therefore subject to no limitation period pursuant to s. 16(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B — If so, what limitation period applies to an application to set aside a domestic contract pursuant to s. 56(4) of the Family Law Act, R.S.O.1990, c. F-3?.
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The parties began cohabitating in 2004 and were married in 2005. Several days before the wedding, they entered into a marriage contract in which the parties waived any entitlement to spousal support and agreed to be separate as to property. Although the agreement indicated that each party had received independent legal advice, neither actually did. The marriage contract also stated that each party had provided fair and reasonable disclosure of their property and financial obligations. The parties separated in 2012. The husband moved out of the matrimonial home that was owned by the wife. The parties retained lawyers and negotiations between them ensued. The husband applied for spousal support and equalization of net family property in August 2017. The wife defended by relying on the marriage contract as a complete defence. The husband asked the court to set aside the marriage contract on the basis that he had signed it without financial disclosure, without legal advice, under duress, and under a clear power imbalance. Although the husband commenced the proceeding within the six year limitation period for equalization claims under s. 7(3)(b) of the Family Law Act, R.S.O.1990, c. F 3, more than two years had elapsed since the parties had separated. The wife obtained summary judgment, dismissing the husband’s claim, on the basis that the request to rescind the marriage contract was out of time under the general two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002. That decision was overturned on appeal.
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