HOM successfully argues dismissal of family law claim for being two-weeks too late.
Acting for the Respondent in a family law matter, HOM lawyer, Esteban T. Kähs, persuaded the Court to dismiss the Claimant’s division of asset and spousal support claims summarily for being filed with the court two weeks too late.
As noted in Madam Justice Murray’s December 23, 2021 decision, our client’s summary trial focused on a single issue: the date the parties separated.
Mr. Kähs argued that the parties separated on March 29, 2016, while counsel for the Claimant said the separation date was April 25, 2016. Although less than a month a part, this difference was significant because the Claimant had filed her claim on April 23, 2018. Pursuant to s. 198(2)(b) of the Family Law Act (FLA) a non-married spouse must file their claim within two years of the date of separation.
After determining that a summary trial was appropriate, and that the evidence provided was sufficient to permit the court to weigh the parties’ conflicting testimony and make findings of fact, the Court ultimately agreed with the Respondent’s argument regarding the earlier separation date.
Madam Justice Murray found that before he left on a trip, on March 29, 2021, our client had formed a settled intention to end the relationship, and that he communicated that intention to the Claimant. Additionally, the Court agreed that the Claimant’s actions while the Respondent was away on his trip were consistent with him having communicated that the relationship was over; and that the parties’ relationship never returned to “normal” upon the Respondent’s return.
The Court confirmed that the legal test of separation is an objective one; and there does not have to be mutuality or agreement between the parties as to the date of separation. The question to be decided was not when the Claimant formed an intention to separate permanently, but if the Respondent objectively communicated that the relationship was permanently at an end.
In the result, the Court found that the Claimant’s family law action was not brought within the two-year limitation period set out in s. 198 of the FLA and it was therefore statue-barred and dismissed entirely.
If you are dealing with a family law claim, or want to ensure that your claim will not be found to be out of time, HOM can help. Don’t hesitate to contact our office.
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