SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 295/12

DATE: 20130614

IN THE MATTER OF: The Estate of John Mischuk, late of the City of Kitchener, in the Regional Municipality of Waterloo, deceased

RE: Pauline Eleanor Mischuk, Applicant

AND:

David Mischuk, Respondent

BEFORE: Mr. Justice B.G. MacDougall

COUNSEL:
John Annen, for the Applicant

Jane Rutherford, for the Respondent

HEARD: June 7, 2013

ENDORSEMENT

[1]

Introduction

On June 7^th, 2013, I granted the Applicant an extension of time under sec. 2 of the Family Law Act and stated that reasons would follow. These are the reasons.

2The applicant, Pauline Mischuk seeks leave under the Family Law Act for an extension of time for filing her election no later than six months after her spouses’ death to obtain an equalization of net family property under section 5(2) of the Family Law Act.

3Pauline and her spouse, the late John Mischuk were married on April 28^th, 2007. John died on August 17^th, 2011.

4During the marriage Pauline and John resided at a home at 607 Rush Meadow Crescent in Kitchener, Ontario, along with John’s son David Mischuk and David’s wife, Sharon Mischuk and their children. The title to the home was in the name of John Mischuk, David Mischuk and Shannon Mischuk.

5Within a month after John’s death, Pauline retained legal counsel in Kitchener with respect to her rights regarding her late spouse’s estate.

6Pauline had understood that her late husband John had prepared a new will which had excluded her from his estate and that David Mischuk was named as trustee of his father’s estate.

7On September 21, 2011, Pauline’s then-lawyer wrote to David and advised him that he was retained by Pauline, and among other things, advised David that Pauline would be pursuing remedies under the Family Law Act equalization provisions and that she would be making a claim against the matrimonial home to satisfy this equalization. Her legal counsel requested a copy of the will and a financial statement with respect to John’s estate. Pauline’s counsel’s letter also made reference to a “refinancing of the mortgage on June 2^nd, 2001 without Pauline’s consent” and that “…John Mischuk makes a fraudulent declaration in the document, indicating that, “I am not a spouse.” Much apart from this obvious fraud on the registry system and my client, no proceeds of this mortgage were ever received by my client, or by her deceased husband, as I understand it.”

8The letter concludes by Pauline’s counsel stating that if he fails to hear from the estate’s legal counsel within 15 days, he was instructed to commence litigation against the estate.

9On January 30^th, 2012, Pauline sent a follow-up letter to her then-legal counsel, confirming her instructions to proceed with the “application”.

10David, in his affidavit on this motion, confirms that as a result of receiving Pauline’s lawyer’s “demand” letter of September 22, 2011, he retained a lawyer and on November 4^th, 2011, David’s lawyer made a monetary offer to Pauline’s lawyer to settle her claim. For some inexplicable reason, no further action appears to have been taken by Pauline’s former legal counsel on this file.

11In June of 2012, Pauline retained her current legal counsel and on June 28^th, 2012, he corresponded with David’s lawyer, seeking a copy of John’s will and other information. Pauline’s counsel confirmed that he had instructions at that time to seek an extension of time for her to make an election under the Family Law Act for an equalization of net family property.

12David’s lawyer responded and advised that David’s prior offer, that was set out in the November 14^th, 2011 letter was being extended for acceptance to July 27^th, 2012 and if not accepted at that time, it would be withdrawn.

13On July 12^th, 2012, as Pauline’s lawyer had not received a copy of John’s will, he served David’s lawyer with a Request for Notice of Commencement of Proceedings. Around July 19^th, 2012, David’s lawyer finally provided a copy of John’s will to Pauline’s lawyer, eleven months after John’s death and ten months after the first request for a copy of the will.

14In the July 23rd, 2012 letter from David’s lawyer, she commented that “[t]here is no urgency at this time of which you have advised us, but I can assure you that my client has no interest in delay.”

15On July 31^st, 2012, David’s counsel wrote Pauline’s counsel and proposed that both counsel should agree to exchange “the necessary information” by August 15^th, 2012, including detailed information about assets, liabilities and income, etc.

16On September 11^th, 2012, David’s counsel did provide details of John’s affairs in a letter and submitted a monetary offer of settlement that was open to acceptance until October 19^th, 2012.

17Pauline’s lawyer issued her application on December 5^th, 2012 with a first return date being January 18^th, 2013.

18David subsequently changed counsel to his present legal counsel.

19Section 2(8) of the Family Law Act [1] – Extension of Time - provides that:

The court may, on motion, extend the time prescribed by this Act if it is satisfied that,

(a) There are apparent grounds for relief;

(b) Relief is unavailable because of delay that has been incurred in good faith; and

(c) No person will suffer substantial prejudice by reason of the delay.

(a) Apparent Grounds for Relief

[20]

Apparent Grounds for Relief

Counsel for David submitted that the John’s net family property, which was sworn by David on May 28^th, 2013 showed that John had a negative balance on the day prior to his death. Accordingly, counsel submits that there are no “apparent grounds for relief” as there is no net family property to divide.

21Counsel for Pauline comes up with a different calculation for John’s estate, showing a positive balance in her favour, resulting in an equalization payment owing to her.

22One of the major issues in contention is the liability shown for refinancing the former matrimonial home, which was done prior to John’s death, but without Pauline’s consent. John apparently signed mortgage documents indicating that he “was not a spouse”. David and David’s wife were also signatories on that document. Clearly, the statement by John was an error. Whether or not this was an “oversight only” as suggested by David’s former counsel or otherwise needs to be determined.

23This issue is appears to be further compounded by the fact that David, who is a minister, and who officiated at his father and Pauline’s wedding, signed his father’s death certificate, describing his father as “widowed”.

24Although the challenge to the mortgage transaction may not be set aside, because the mortgagee may have “acquired it for value, in good faith and without notice”, nevertheless, it would be open for Pauline to seek a variation of any net family property under section 5(6) of the Family Law Act.

25Under these circumstances, I am satisfied that Pauline has demonstrated that there are “apparent grounds for relief”.

(b) Has the delay been incurred been in good faith?

[26]

Has the delay been incurred been in good faith?

I am satisfied that the delay has been incurred in good faith.

27As noted, David was notified by Pauline’s counsel a little over a month after John died, about seeking an equalization claim. In correspondence exchanged between counsel, David’s counsel made several offers of settlement well outside of the 6 month limitation period, without any reference to the fact that the 6 month limitation period had expired. Also as noted, Pauline’s lawyer had been taking the position that without receiving a sworn Net Family Property statement from David regarding his father’s financial situation and a copy of the will, he could not properly advise his client as to her election Section 6 of the Family Law Act and/or what, if anything, she might be entitled to under Family Law Act provisions .

28Also, after the 6 month time period had expired, Pauline’s lawyer had put David’s lawyer on notice that he would be seeking an extension of the 6 months if necessary.

29In Pauline's former lawyer’s letter to David of September 22, 2011, in referencing a “new Will”, he asserted that David had “denied my client any access to this document”. It was only after several letters from Pauline's new legal counsel, threatening court procedures if a copy of John’s Will was not produced, that a copy was eventually provided, around July 19^th, 2012, which is approximately 11 months after John’s death

(c) Has any person suffered substantial prejudice by reason of the delay?

[30]

Has any person suffered substantial prejudice by reason of the delay?

Given the circumstances referred to above, David needs to bear a considerable portion of the reason for the delay. Nothing else that has been referred to could, in total, constitute “substantial prejudice”.

[31]

Disposition

Order to issue extending the time for the applicants claims under the Family Law Act.

32Costs of this referred to the Applications judge.

Footnotes

1. 1Family Law Act, R.S.O. 1990, c. F.3, as amended, at section 2(8)