The applicant, Marilyn Ellen Mihalcin (Sally), sought to amend her pleadings to include an equalization claim against the estate of her deceased husband, Frank Mihalcin, and to extend the six-month limitation period for filing such a claim under the Family Law Act (FLA).
The court applied the three-part test under FLA s. 2(8) for extending time limits: apparent grounds for relief, delay incurred in good faith, and no substantial prejudice.
The court found that the applicant failed to provide sufficient evidentiary basis to demonstrate apparent grounds for relief, as no financial statement was filed to show an entitlement to an equalization payment.
Furthermore, the applicant failed to prove that the delay in formally filing the election was incurred in good faith, citing vague evidence regarding her former solicitor's actions.
While the court agreed that no substantial prejudice would arise, the failure to satisfy the first two criteria, coupled with insufficient grounds for exercising residual judicial discretion, led to the dismissal of the motion.
