SUPERIOR COURT OF JUSTICE
BETWEEN:
Hasan Yabas Applicant
– and –
Victoria Yabas Respondent
Self-Represented Jennifer Vandenberg, counsel for the Respondent
HEARD: November 10 & 12, 2025
REASONS FOR JUDGMENT
Part One – Introduction
1The Applicant in this matter is Hasan Yabas. The Respondent is Victoria Yabas. They were married on June 3, 2009, and separated on June 1, 2019.
2The parties signed a final separation agreement on June 1, 2019 (“the 2019 Agreement”), which dealt with all issues, including the division of property. The parties’ marriage was terminated by divorce on February 11, 2022.
3The Applicant commenced his family law application on October 22, 2024. According to that application, the Applicant seeks to set aside the 2019 Agreement and, if that is granted, seeks equalization of net family properties pursuant to s.5 of the Family Law Act, R.S.O. 1990, c. F.3.
4Even if he is successful in setting aside the 2019 Agreement, the Applicant concedes that he is statute-barred from proceeding with his property claims because his application was commenced more than eight months after the expiry of the limitation period on February 11, 2024, pursuant to s.7(3) of the Family Law Act.
5As a result, the Applicant now seeks an order under s.2(8) of the Family Law Act extending the time available to him to apply for an equalization of net family properties.
6The Respondent opposes the Applicant’s request and brings her own cross-motion. If the Applicant’s motion to extend time is successful, the Respondent seeks an order that the Applicant pay security for costs of $20,000.
Part Two - Procedure
7This matter was originally set for a short motion before Brown J. on July 4, 2025. As it was clear that the Applicant’s motion and the Respondent’s cross-motion could not be determined within an hour, Brown J. adjourned the matter to a long motions day and permitted both parties to file additional evidence. At that time, the Applicant advised Brown J. that he wished to proceed on affidavit evidence only, rather than a trial.
8This matter was set before me on October 30, 2025. On that day, I again canvassed with the Applicant as to whether he wished to proceed with a focused hearing/mini-trial, which would include cross-examination. The Applicant agreed with this suggestion, as did the Respondent.
9As a part of the focused hearing, I permitted both parties to provide the court with supplementary oral evidence and cross-examination by the other party. This was completed in one day, on November 10, 2025.
10Given the number of affidavits, the volume of evidence provided, the availability of oral evidence, and the fact that the Applicant was clearly assisted by limited-scope counsel, I have no trouble concluding that both parties provided the court with all available evidence necessary to decide this matter. In particular, I find it appropriate in these circumstances to make factual findings and to make conclusions about the parties’ credibility and reliability. I had the opportunity to hear orally from both parties and both were given the opportunity to cross-examine the other.
Part Three – The Facts
Background Facts
11The parties’ relationship spanned 10 years from 2009 to 2019. There are three children of the marriage.
12The Applicant graduated from Mohawk College with a financial services diploma in 2015. The Applicant worked in various capacities after that time, including as a financial advisor and selling insurance. The Respondent was employed in the healthcare sector.
13During the course of their marriage, the parties purchased a home together at 31 East 16th St., Hamilton, ON (“the matrimonial home”). The parties do not agree with its value as of the date of separation. However, they do agree that as of the date of separation, the mortgage on the property was approximately $167,000. While married, the parties also purchased two cars, a Mercedes GLK and a Chevy Orlando Value. There was a loan on the Mercedes GLK of $25,000 in both their names.
14The parties experienced significant financial stressors during their relationship. By the time the parties separated, they had significant joint debts of approximately $260,000, which included the mortgage, property taxes, a home equity line of credit, and the Mercedes GLK car loan. They also had individual credit card and commercial debt totaling approximately $25,000. The Applicant’s portion of this individual debt comprised of $3,117.25 towards his BMO Mastercard and $6,035.43 towards his Capital One Mastercard.
The 2019 Agreement
15On June 1, 2019, the parties signed a separation agreement which purported to deal with all issues related to their separation – including parenting, child support, spousal support, and property. With respect to property, the 2019 Agreement stated as follows:
a. The Applicant is to transfer his interest in the matrimonial home to the Respondent upon the Respondent transferring the Mercedes GLK into his name and the Respondent solely assuming the $25,000 loan on the car.
b. Upon transfer of the matrimonial home, the Respondent would be solely responsible for all encumbrances registered against the matrimonial home.
c. The parties had already agreed upon a division of assets.
d. There would be no other property division, except the Chevy Orlando Value would be transferred into the Respondent’s name and the Mercedes GLK would be transferred into the Applicant’s name.
e. Any debt secured against any property received under the Agreement would be the sole responsibility of the party receiving the property.
16The 2019 Agreement also included terms indicating that the parties made “complete, fair and accurate disclosure to each other on all financial matters”, that the agreement was entered into on a voluntary basis, and that both parties were in “sound mental health.” Neither party obtained independent legal advice with respect to the 2019 Agreement, nor did they exchange financial statements.
17There parties have two different stories as to how the 2019 Agreement came about.
18According to the Respondent, in May 2019, after the Applicant had moved out of the home, the Applicant proposed that the parties consolidate their debts into the mortgage on the matrimonial home. The proposal was that after the consolidation of their debts, the Respondent would assume title of the home and the new mortgage. The Respondent’s evidence is that together they met with an advisor at TD Bank to discuss the plan. As a result of the meeting, and on the advice of the TD Bank advisor, the parties drafted a separation agreement together. At all times the Applicant was aware of the parties’ financial circumstances.
19In cross-examination, the Applicant admits that they did consolidate the family debts into the mortgage. He admits that he benefited from the Respondent’s subsequent payment of those debts (some of which were his sole debts) while she assumed title of the home. He confirmed on multiple occasions in text messages in 2021 and 2024, as well as in oral evidence, that he chose to transfer the matrimonial home to the Respondent because he wanted to avoid conflict with her and wished to prioritize the children’s stability.
20Notwithstanding those facts, the Applicant states that he was pressured into signing the 2019 Agreement by the Respondent. Moreover, he states that the 2019 Agreement was authored solely by the Respondent. He claims that as a result of his limited English proficiency and mental vulnerability, he did not understand what he was signing.
21Despite the Applicant’s alleged lack of understanding, the parties carried out the 2019 Agreement. The title of the matrimonial home was transferred to the Respondent’s sole name. The parties’ joint and sole debts were consolidated into the mortgage and paid by the Respondent solely. The Mercedes GLK was transferred to the Applicant’s sole name.
Consultation with a Lawyer in 2020
22After the 2019 Agreement was signed, the parties continued to argue about property division and equalization. In 2020, the Respondent set up a consultation with a lawyer for both herself and the Applicant to discuss the issues. The Applicant does not disagree that they had discussions about property division and equalization. In fact, the Applicant agreed that he attended the consultation. His evidence on this issue is as follows:
I note that the Respondent admits that I attended the consultation she arranged in 2020, which contradicts her claim that I refused to engage in meaningful discussions about getting a divorce. Her own words confirm that I participated in the process. The consultation itself did not move forward not because of my unwillingness, but due to the Respondent’s failure to provide financial disclosure or pursue any fair or transparent follow-up. Her narrative deflects from the central issue, which is that no resolution was reached because she remained unwilling to disclose her financial position, not because I refused to retain counsel.
23From this evidence, it is clear that as of 2020, the Applicant was dissatisfied with the process through which property was divided and that the issue of property division continued to remain in dispute. According to the Applicant, the Respondent’s failure to disclose was the reason why they did not move forward with further negotiations. Despite recognizing this as a problem, the Applicant did not proceed with retaining a lawyer or commencing an application.
The 2021 Amending Agreement
24In 2021, the parties discussed obtaining a divorce. The parties dispute the motivation behind obtaining the divorce. However, it is clear from the evidence that the parties were aware that they needed to re-negotiate the child support provisions set out in the 2019 Agreement in order for the divorce to be granted. Together, they attended mediation with Axis Family Mediation, who concluded their work on July 9, 2021, and provided the parties with a closed offsite mediation report.
25The parties then used the mediation report as a basis for creating an amending agreement, titled “Amendment to Separation Agreement and Parenting Plan Attachment” (the “2021 Amending Agreement”) which dealt primarily with parenting and child support. The parties signed the amending agreement on September 3, 2021.
26The 2021 Amending Agreement did not include certificates of independent legal advice. However, the Applicant was a member of a program called “Legal Shield” at that time, which provided legal services to members. He forwarded an initial draft of the agreement to the program, who assigned a lawyer, Marie Roy from Mills and Mills, to review the agreement.
27Ms. Roy provided the Applicant with detailed comments and recommendations on the draft on August 27, 2021. Upon receiving the comments from Ms. Roy, the Applicant says that he forwarded the draft with the comments directly to the Respondent without even looking at them. The Respondent then added those comments into the final draft, which the parties signed.
28The first comment made by Ms. Roy directly on the draft states:
“You should have a Background section setting out the parties’ name, children’s name and date of birth and confirming that you have a Separation agreement and have agreed to modify paragraph XXX. This should confirm that the Separation Agreement remains valid with the exception of the provisions being amended hereinafter.” [emphasis added]
Ms. Roy’s suggestion was incorporated directly into the 2021 Amending Agreement. The Applicant says he was unaware of the clause being added because it was the Respondent who made the amendments.
29In addition, the 2021 Amending Agreement contained the following clause at para. 2.2:
Both parties have used the Net Family Property Statement (Form 13B) to determine that there was a fair equalization of family property at time of separation. Both Victoria Yabas and Hasan Yabas agree that the net difference in assets/debts was equal and neither party owes anything as of June 30, 2021.
This clause does not appear to be the subject of any comment by Ms. Roy and was present both in the initial draft and the final draft that was signed. The Applicant says that the Net Family Property Statement referred to in the 2021 Amending Agreement was never exchanged. He says, again, that he was unaware of the clause being added to the agreement.
30The parties do not agree whether Ms. Roy’s recommendations are “legal advice”. I do not need to resolve this dispute for the purposes of the matter before me. What was clear, however, was that a lawyer assigned to the Applicant from “Legal Shield” had reviewed the agreement and made recommendations, and that the Applicant appears not to have read the recommendations or objected to them before flipping them to the Respondent. The Respondent then incorporated the changes directly into the draft, and the parties signed the Agreement.
31It should also be noted that during the process of completing the 2021 Amending Agreement, the Applicant was provided with a draft financial statement which he only partially completed. As a result, no formal financial statements were exchanged at this time.
The 2021 Debt Acknowledgement
32During the time the parties were negotiating the 2021 Amending Agreement, they entered into an additional agreement. On August 20, 2021, the parties signed a document entitled “Debt Acknowledgement Form (IOU)”. This was again, signed without legal advice.
33The “Debt Acknowledgement Form (IOU)” is essentially a promissory note, setting out the debt of $18,500 owed by the Applicant to the Respondent. The document also included re-payment terms at a rate of $190 a month. The Respondent says that the parties signed this note because she had paid additional credit card debt for the Applicant after separation. The Applicant’s version of events was completely different; he said that the Respondent forced him to sign the note because she wanted him to repay the personal loans she paid on his behalf through the consolidation process in 2019.
The Divorce
34After signing the 2021 Amending Agreement, the parties filed a joint application for divorce in September 2021. They each swore separate affidavits of divorce on September 23, 2021, commissioned by a clerk of the court. The parties’ first attempt at obtaining the divorce was rejected. They both subsequently swore separate affidavits of divorce on January 27, 2022, and re-submitted the application to the court.
35Both versions of the affidavits of divorce signed by the parties contained the following paragraph:
“I do not want to make a claim for a division of property in this divorce case, even though I know that it may be legally impossible to make such a claim after the divorce.”
36The Applicant says that the affidavit of divorce was prepared by the Respondent. He said he did not understand the legal effect of the property acknowledgment contained in the affidavit of divorce. He says his understanding was impaired by his language barriers, untreated ADHD and depression.
37The Respondent disputes this version of events. She points out that the clerk of the court asked both of them whether they read the documents they were to sign. Her evidence is that the Applicant confirmed with the clerk that he understood the contents of the document and that they were true prior to signing the document.
38The divorce was granted on February 11, 2022. The two-year limitation period under s.7(3) of the Family Law Act commenced running on this day.
Events after 2022
39Subsequent to the divorce being granted, it appears the parties went on with their lives in accordance with their arrangements as set out in the 2019 Agreement and the 2021 Amending Agreement.
40In 2023, the Respondent finished significant renovations to the matrimonial home, including adding a second bathroom and new flooring throughout. She says the renovations cost her approximately $100,000. She completed additional renovations in the spring of 2024. At no time did the Applicant assist her in, or stop her from, completing those renovations.
41On August 29, 2023, the parties exchanged text messages about the division of their property, and particularly, the Applicant’s transfer of the matrimonial home to the Respondent. In that text exchange, the Respondent told the Applicant that she had consulted with a lawyer, who had determined that she had overpaid the Applicant by $14,000. She ended the text message with “[t]his is how they calculate things in court, they figure our net worth and split it evenly.” In response, the Applicant insisted that the Respondent would have to sell the house to determine their net worth. The parties then argued about who was right about how “net worth” is calculated for family law purposes.
42In May 2024, the Applicant and the Respondent’s partner got into an argument over text. The Applicant claims he received text messages from the Respondent’s partner that were threatening in nature. He interpreted these text messages as the Respondent’s partner interfering in his parenting of his children. He says that this is what caused him to see a lawyer for the first time. According to the Respondent, it was only during his meeting with a lawyer in May 2024, that he read the 2019 Agreement for the first time with a professional and learned about the limitation period.
43The Respondent rejects the Applicant’s evidence. She says that the reason he went to see a lawyer in May 2024 is because he had repeatedly threatened her with an “accounting” of the equity he allegedly gave her in the home if she was to become involved in a relationship with another man. The Respondent produced text messages as far back as September 7, 2021, which showed the Applicant threatening to make trouble for her if she let another man into the house.
44The Applicant did not start his application immediately after seeing a lawyer in May 2024. The following is the Applicant’s evidence of what occurred between May 2024 and the commencement of his application:
a. In June 2024, the Applicant did research about bringing a claim.
b. In June and July 2024, the Applicant travelled to Turkey for a family wedding.
c. On July 25, 2024, the Applicant wrote to the Respondent about mediating a resolution of their property issues. This was rejected.
d. He was unable to commence his application promptly because he had to file his outstanding 2022 and 2023 tax returns so that he could obtain Notices of Assessment to file with his application.
e. He commenced taking Vyvanse for his ADHD in October 2024, which enabled him to complete his application.
f. The Applicant filed his application on October 22, 2024, eight months after the limitation period had expired.
The Applicant’s Mental Health
45The Applicant states that his mental health condition, and in particular, his depression and ADHD significantly affected his ability to process legal matters and make informed decisions. He claimed that because of his depression and ADHD, he lacked executive functioning and the ability to act during the limitation period. He said that his ADHD impaired skills such as initiating, organization, and follow through. During oral argument, he claimed that he lacked capacity to understand and appreciate the consequences of his choices during the relevant period.
46The Applicant provided two letters from his family physician, Dr. Mark Grafham, and one letter from his psychotherapist, Marta Rossit, to support his position. Neither of these professionals gave additional oral evidence, nor were they cross-examined on their letters. For the purposes of these reasons, I accept that the contents of those letters are true.
47Dr. Grafham has been the Applicant’s family physician since 2010. Dr. Grafham’s initial letter of October 7, 2024, was extremely brief – stating merely that the Applicant was diagnosed in December 2018 with ADHD and that “his ADHD may result in issues related to his legal matters.”
48Dr. Grafham’s second letter of May 7, 2025, was one page in length and provided only a little more detail. Specifically, the letter included the following:
a. The Applicant suffers from “poor attention, poor focus, scattered and intrusive thoughts.”
b. The Applicant’s cognitive deficits have impacted on the Applicant’s work performance and relationships over many years.
c. The Applicant was reluctant to take stimulant medication for ADHD, preferring to take Modafinil from 2018 to 2023, which did not improve his symptoms.
d. The Applicant consented to taking Vyvanse in October 2024. Dr. Grafham says that this has made the Applicant more productive, and he now remembers appointments.
49The letters provide no indication that Dr. Grafham conducted an independent objective assessment of the impact of the Applicant’s ADHD on his ability to understand and conduct legal matters. There is no evidence of any formal testing used, the results of such testing, or the scientific evidence relied on by Dr. Grafham to support his minimal observations and opinions.
50Ms. Rossit provided a letter dated May 22, 2025. She states that the Applicant sought counselling for symptoms of depression, anxiety, and ADHD. He had attended 32 counselling sessions since July 20, 2019. The letter then sets out the Applicant’s self-report of symptoms he apparently suffers from, as well as his opinion of his own functioning as a result of those symptoms. It is clear from the face of Ms. Rossit’s report that she made no independent assessment and performed no independent testing to verify the Applicant’s self-reports.
51The Applicant’s evidence is that he was not able to proceed with a court application until he commenced taking Vyvanse in October 2024. He had previously taken Modafinil, which caused him to have migraines and was ineffective in controlling his symptoms.
Part Four – Assessment of Credibility and Reliability
52Credibility was an important issue in this focused hearing. The parties provided conflicting evidence on some material issues which required an assessment of their respective credibility and reliability.
53In McBennett v Danis, 2021 ONSC 3610, at paras. 40-41, Chappel J. reviewed the legal principles relating to the assessment of credibility and reliability. These principles include the following:
a. The assessment of credibility and reliability is not an exact science;
b. It is not always possible to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various version of events; and
c. The judge is not required by law to believe or disbelieve a witness’ testimony in its entirety. They may accept none, part, or all of a witness’ evidence, and may also attach different weight to different parts of a witness’ evidence.
54As set out in McBennett, factors that the court may consider when assessing credibility and reliability are as follows, at para. 41:
a. Were there inconsistencies in the witness’ evidence at trial, or between what the witness stated at trial and what they said on other occasions, whether under oath or not? Inconsistencies on minor matters of detail are normal and generally do not affect the credibility of the witness, but where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth.
b. Was there a logical flow to the evidence?
c. Were there inconsistencies between the witness' testimony and the documentary evidence?
d. Were there inconsistencies between the witness’ evidence and that of other credible witnesses?
e. Is there other independent evidence that confirms or contradicts the witness' testimony?
f. Did the witness have an interest in the outcome, or were they personally connected to either party?
g. Did the witness have a motive to deceive?
h. Did the witness have the opportunity and ability to observe the factual matters about which they testified?
i. Did they have a sufficient power of recollection to provide the court with an accurate account?
j. Were there any external suggestions made at any time that may have altered the witness’ memory?
k. Did the evidence appear to be inherently improbable and implausible? In this regard, the question to consider is whether the testimony is in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?”
l. Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
m. Where appropriate, was the witness capable of making concessions not favourable to their position, or were they self-serving?
n. Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution.
55The Applicant was self-represented at this hearing. It was clear to me that he completely understood the proceedings and was an active participant in the hearing. The Applicant’s conduct was civil and polite throughout, even though this was clearly a difficult hearing for him. At times, I did assist him with rephrasing his questions. However, that is to be expected and does not impact my assessment of his credibility.
56Notwithstanding the Applicant’s exemplary conduct at the hearing, I had significant concerns about the Applicant’s credibility and reliability. I found that the Applicant’s evidence was at times exaggerated, contradictory, and implausible. His recall of the evidence appeared to be coloured by his position in this litigation, and was at times, inaccurate. The following are a few examples:
a. The Applicant provided inaccurate information about his mental health. It was clear from the evidence that he only received a formal diagnosis for ADHD. However, at various points in his affidavits (in particular, his most recent affidavit), he suggested that he had “diagnosed” depression, “clinical depression”, and a “major depressive disorder”. This was an inaccurate and self-serving portrayal of a major aspect of the Applicant’s case, calling into question his evidence about his mental health.
b. The Applicant claimed, in oral evidence, that it was only after he met with a lawyer in May 2024 that he found out that the Respondent had written in the agreement that she would purchase his rights in the home in exchange for assuming the $25,000 Mercedes GLK loan. I found these statements to be implausible. It was clear from the Applicant’s evidence that he was fully aware that he had transferred his home to the Respondent; in fact, he testified that he did so for the benefit of the children. He was also aware that he had consolidated the joint debts, his sole debts, and the Mercedes GLK loan into the Respondent’s mortgage. He was not oblivious to the substance of the 2019 Agreement.
c. The Applicant’s re-telling of how the 2019 Agreement was drafted and his insistence that he had nothing to do with the preparation of the 2019 Agreement is implausible. His evidence, essentially, is that he had nothing to do with the drafting of the agreement; it was the Respondent who did everything; he was pressured to sign the agreement quickly to allow the Respondent to obtain child benefits from the Canada Revenue Agency; and he did so because he was in a vulnerable state. By contrast, the Respondent’s account of what happened contained probative details and made logical sense in the context of their relationship. Her evidence was that the parties had, together, met with a TD bank advisor with the purpose of consolidating their debts. They had then, together, drafted the 2019 Agreement according to the advice they received. The Applicant had insisted on including a clause that the Mercedes GLK is transferred to his name alone. Between the two accounts, I accept the Respondent’s account as credible.
d. The Applicant minimized the benefits he received from the 2019 Agreement, and in particular, the Respondent’s payment of his debts and the joint debts. The Applicant’s affidavit calculated the benefit he received at $37,146.68. This was clearly inaccurate given that the mortgage alone, at that time, was $167,000. He admitted in cross-examination that the Respondent assumed almost $300,000 in debts as a result of consolidating their debt into the mortgage. The Applicant’s continued insistence that he benefited only marginally from the Agreement was self-serving and misleading.
57Additional examples of the problems with respect to the Applicant’s credibility will become evident later in this decision.
58The Respondent, by contrast, was straight-forward and measured in her evidence. I found that she gave substantial details and reasonable explanations of what happened. She was forthcoming and readily admitted facts that were not beneficial to her. For example, she admitted that the parties did not receive independent legal advice for the 2019 Agreement and the lack of formal financial disclosure in relation to both the 2019 Agreement and the 2021 Amending Agreement.
59Based on my assessment of the parties’ respective reliability and credibility, where there was conflict between the Applicant’s evidence and the Respondent’s evidence, I preferred the evidence of the Respondent.
Part Five – Analysis on Extension of the Limitation Period
60Throughout this hearing, both parties spent a significant amount of time on evidence related to whether the 2019 Agreement should be set aside. While the validity of the 2019 Agreement is a threshold issue in dispute between the parties, the evidence produced to support this issue was not entirely relevant or helpful for my purposes at this hearing. The task before me was not to rule on the validity of the 2019 Agreement. Rather, the only issue before me at this hearing is whether I should grant the Applicant an extension of the limitation period to seek equalization of net family properties pursuant to s.2(8) of the Family Law Act.
61In Kyle v Atwill, 2020 ONCA 476, the Court of Appeal held that no limitation period applies to a proceeding for a declaration where no consequential relief is sought, such as setting aside of a domestic contract. However, the limitation period for consequential relief, such as equalization, continues to apply. According to the Court of Appeal, at para. 55:
Conversely, had the husband brought his equalization claim seven years after the date of separation with no reasonable possibility of reconciliation, and therefore out of time, the fact that he would be able to obtain a declaration setting aside the marriage contract would not mean that his equalization claim could proceed. That claim would remain time-barred, subject to the power of the court to extend the time under s. 2(8).
62Similarly, in this case, the Applicant’s request to set aside the 2019 Agreement is not subject to a limitation period. However, his subsequent claim for equalization of property is subject to the limitation period set out at s.7(3) and the extension permitted under s.2(8) of the Family Law Act.
63As noted, the parties were divorced on February 11, 2022. The two-year limitation period therefore expired on February 11, 2024, pursuant to s.7(3)(a).
64However, the limitation period may be extended pursuant to s.2(8) of the Family Law Act, which states:
(8) The court may, on motion, extend a 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.
65The party seeking the extension must establish each of these requirements, on a balance of probabilities, as a pre-condition to granting the relief: Vivier v. Vivier (1987), 1987 8339 (ON HCJ), 5 R.F.L. (3d) 450 (Ont. Dist. Ct.), at p. 456.
Apparent Grounds of Relief – s.2(8)(a)
66The first criteria the Applicant must establish is that there are apparent grounds of relief.
67As stated in Scherer v Scherer (2002), 59 O.R. (3d) 399 (C.A.), at para. 16, the “relief” referred to is the relief sought under the Family Law Act, such as equalization. In determining whether “apparent grounds of relief” exist, the court need only make a limited inquiry into the merits of the proposed claim. The question to be answered is “but for the limitation period that acts as a bar, are there apparent grounds to support the claim?”: Hevey v Hevey, 2021 ONCA 740, at para. 40. The Applicant does not need to show that he has a successful application on the merits to satisfy the requirement for apparent grounds of relief.
68In this case, the limitation period acts as a bar to the Applicant’s equalization claim, not his claim to set aside the separation agreement under s.56(4) of the Family Law Act. Without commenting on the ultimate merits of the Applicant’s claim, I find that but for the limitation period, the Applicant clearly has grounds for a claim for equalization.
Good Faith Delay – s.2(8)(b)
69In my view, the crux of this case relates to whether the Applicant’s delay was incurred in good faith.
70In Scherer, at para. 24, the Court of Appeal adopted the following description of the evolution of the court’s interpretation of the good faith requirement:
In the case of Hart v. Hart (1990), 1990 12268 (ON SC), 27 R.F.L. (3d) 419 (Ont. U.F.C.), Mendes de Costa J. applied the following definition of what constitutes "good faith" at page 432:
I believe to establish "good faith", it must be shown that the moving party acted honestly and with no ulterior motive. It does not seem to me that the legislature, anticipating the general newsworthy nature of the family property provisions of the Act, intended that a mere failure to make enquiries should necessarily negate "good faith", provided the absence of enquiry does not constitute willful blindness or does not otherwise, in all the circumstances, fall below community expectations. As I have stated, my assessment of the evidence is that the wife was ignorant of her rights under the Act, and I believe that her state of mind was one of blameless ignorance.
Following the Hart decision, courts began to impose limits on the good faith requirement of s. 2(8)(b). For example, in the case of Busch v. Amos (1994), 1994 7454 (ON SC), 9 R.F.L. (4th) 36 (Ont. Gen. Div.), Salhany J. offered the following definition of "good faith" at page 39, paragraph 8:
I agree that the term 'good faith' means acting honestly and with no ulterior motive. I also agree that failure to act in ignorance of one's rights may, in some circumstances, amount to 'good faith'. However, in my view, it is not enough for a party who must establish good faith to say that he or she was ignorant of their rights. They must also establish that they had no reason to make enquiries about those rights.
The Busch case involved an application by the wife for an equalization of the husband's pension seventeen months after the limitation period had expired. The wife claimed that, at the time of the divorce, she was unaware of the entitlement to an equalization of net family property and she did not seek legal advice because of a lack of sufficient funds to retain a lawyer. Salhany J. found that the wife had an opportunity to consult a lawyer but deliberately chose not to.1 Concluding that "she was ignorant of her rights because she chose to be ignorant or willfully blind", he concluded that the wife had failed to establish good faith and the application was dismissed.
The facts of this case are analogous to Dekker v. Dekker (1996), [68 A.C.W.A. (3d) 175]. In Dekker, the wife filed her application for division of matrimonial property two years after the expiry of the statutory limitation period. Although the wife met the first and third criteria of s. 2(8), Mazza J. held that she failed in establishing the good faith criteria because:
Clearly, she knew to retain a lawyer to claim relief available to her from the breakdown of her first marriage. Furthermore, her experience in retaining a lawyer to defend her in a charge of impaired driving as well as her decision to explore a possible claim for injuries from an accidental fall clearly indicated her awareness to make inquiries about her rights. Finally, her unexplained delay in filing her application for almost a full year after the interview with her lawyer to discuss legal remedies was fatal to any hope of establishing "good faith." Her delay may not have been intentional or the result of willful blindness, but her lack of good faith was demonstrated by her indifference to and careless disregard for her obligation, as suggested by the limitation period, to act with reasonable dispatch to pursue her rights and bring them to a conclusion.
[Emphasis and Footnote Added]
71In Scherer, the Court of Appeal accepted that the applicant was unaware of the existence of the limitation period until after it had elapsed. However, he nevertheless failed to establish that his delay was in good faith because as a former lawyer, he should have been aware of the availability of a claim for equalization and the significance of limitations periods. At a bare minimum, the applicant should have inquired as to the implications of the dissolution of his marriage. In essence, the Court of Appeal accepted the motion judge’s conclusion that the applicant’s inaction was willful blindness.
72From Scherer, it is clear that the following needs to be established in order to find that the Applicant’s delay was incurred in good faith:
- The Applicant must have acted honestly and with no ulterior motive;
- The Applicant’s absence of enquiry does not constitute willful blindness (defined as having reason and opportunity to make enquiries about one’s rights, yet choosing not to); and
- The Applicant must not have been indifferent to and careless about his obligation to pursue his rights with reasonable dispatch.
73I find on the evidence that the Applicant has not met his onus to establish that the delay was incurred in good faith.
Ulterior Motive
74First, I have difficulty accepting that the Applicant acted honestly and with no ulterior motive. It was clear from the evidence that the Applicant understood that the 2019 Agreement involved a transfer of the title of the home in consideration for the Respondent assuming all of the family debt, including most if not all of his sole debt. He testified on multiple occasions that he agreed to this arrangement for the benefit of the children. Yet, despite this, almost six years after the matter had been settled, he decided to commence an application to set aside the agreement.
75The triggering event was an argument with the Respondent’s boyfriend. I accept the Respondent’s evidence that the reason for the Applicant’s sudden about-face was because the Respondent had re-partnered and he was angry that her partner was residing in the home. Despite his statements to the contrary, I find that the Applicant’s motive in commencing this application was to make life difficult for the Respondent and her new partner. This is not a motive that the court should reward through an extension of time.
Wilful Blindness
76Second, the Applicant’s absence of enquiry constituted willful blindness. After the Applicant signed the 2019 Agreement, there were at least five opportunities which would have led a reasonable person in the Applicant’s circumstances to make enquiries about his rights. Instead, he chose inaction. These five opportunities are as follows:
a. In 2020, the Respondent set up a consultation with a lawyer for both parties to discuss equalization. The Applicant attended at the consultation. His own evidence is that further discussions about equalization did not move forward because the Respondent refused to provide financial disclosure. A reasonable person serious about pursuing his rights would have sought legal advice and proceeded. Instead, the Applicant chose inaction.
b. During the negotiation of the 2021 Amending Agreement, the Applicant had the agreement reviewed by Ms. Roy through Legal Shield. The Applicant was fully aware that Ms. Roy made recommendations as a result of her review. Instead of reading those comments, the Applicant flipped them to the Respondent. A reasonably diligent person would have at least looked at the comments and then either deleted or made enquiries about those he did not understand. Again, the Applicant chose inaction.
c. On August 20, 2021, the parties entered into a “Debt Acknowledgement”. The Applicant’s evidence is that he was forced to sign this document because the Respondent wanted him to repay her for the personal loans she had consolidated into her mortgage. A reasonable person, allegedly forced to sign such a document, would have at least enquired as to whether this was legal, which would have likely led to a discussion about the parties’ division of their property. Again, the Applicant chose inaction.
d. On September 23, 2021 and January 27, 2022, the Applicant swore two separate affidavits of divorce. Both contained a waiver of property division. I do not accept the Applicant’s explanation that his failure to make enquiries was related to his language barriers, untreated ADHD, and depression. Surely, a reasonably diligent person would have at least enquired as to the contents of the document, particularly where the documents had already been rejected the first time. The Applicant’s language barriers would have only made a reasonably diligent person more cautious, not less. Again, the Applicant chose inaction.
e. On August 29, 2023, the parties exchanged text messages about the division of their property. In that exchange, the Respondent clearly told the Applicant that she had consulted with a lawyer, who determined that she had overpaid the Applicant by $14,000. The Applicant disagreed and became angry. Surely, at this point, a reasonable person would have then consulted with a lawyer to consider his rights. Yet, again, the Applicant chose inaction.
77In each of the above situations, the Applicant had reason and opportunity to consult a lawyer about pursuing his rights. Instead, the Applicant chose inaction. It is implausible that the Applicant was unaware of the need to inquire into his rights. Indeed, he had many opportunities to seek out a lawyer to do so. I can only conclude that his failure to take action after having multiple opportunities to do so over several years was wilfully blind conduct.
Carelessness about his obligations
78Third, the Applicant was also clearly indifferent to and careless about his obligation to pursue his rights with reasonable dispatch. The most obvious example is what occurred after he finally learned about the limitation period in May 2024. Instead of acting immediately, the Applicant decided to do his own research, went on vacation, and then wrote to the Respondent about mediation. At a bare minimum, when the Respondent rejected his request to mediate in August 2024, he should have acted quickly. Instead, he delayed until October 2024 because he said he needed to file his outstanding 2022 and 2023 tax returns with his application. He could have sought leave to commence his application without the returns yet did not. The Applicant’s delay was not reasonable.
The Applicant’s Mental Health
79While not a part of the “good faith” test enunciated in Scherer, I would like to address the Applicant’s argument that his mental health conditions justify a finding that his delay was in good faith. Although in some circumstances, a disability or illness may amount to a good faith explanation for delay, it cannot be that any disability or illness would justify a finding of good faith. Rather, there must be evidence that the disability or illness was so debilitating that it prevented the Applicant from pursuing his or her legal rights during the relevant time period. This is consistent with the rulings of other tribunals that are bound by legislation that permits the extension of time where there is good faith delay. See, for example, Lumley v. Ministry of Children, Community and Social Services, 2024 HRTO 1614, in the context of human rights claims.
80In this case, I am unable to make such a finding. The Applicant’s evidence with respect to his mental health is general and vague. I already noted the credibility problems with respect to his evidence about his medical condition. I do not accept the Applicant’s assertions that his ADHD and depression deprived him of the capacity to understand and appreciate the consequences of his choices. While those conditions may have impaired the Applicant’s functioning, there is no evidence for me to conclude that they would have prevented him from enquiring into his rights and act to assert those rights during the relevant period.
81The medical evidence submitted does not provide an objective or fulsome assessment of the Applicant’s limitations as a result of his ADHD. The only statement that is of use in Dr. Grafham’s one-page letter of May 7, 2025, is that the Applicant suffers from “poor attention, poor focus, scattered and intrusive thoughts.” There is no indication from Dr. Grafham that these are his objective observations rather than reported symptoms by the Applicant.
82In addition, even if true, Dr. Grafham’s letters do not go as far as to say that the Applicant would be unable to pursue his legal rights as a result of the disability. Dr. Grafham’s evidence on this point is an assertion that the Applicant’s ADHD “may” result in issues related to his legal matters. It is unclear whether the specific “issues” referred to here is the impact of ADHD on the Applicant’s ability to consult with a lawyer, understand legal advice, or complete documents. In addition, the word “may” imply a “possibility”; it suggests a standard well below the balance of probabilities. Neither Dr. Grafham’s letters nor the letter from the Applicant’s therapist, Ms. Rossit, satisfies me that his disability was more likely than not to have caused him to be unable to pursue his legal rights at any time between June 1, 2019, and February 11, 2024.
83I also have difficulty accepting that the Applicant’s delay in obtaining proper treatment for his ADHD is a good faith reason for his delay. The evidence is clear that as early as 2018, Dr. Grafham had recommended that the Applicant take a stimulant like Vyvanse for his ADHD. Instead of proceeding with this recommendation, the Applicant chose to take Modanifil, which was ineffective. While I do not fault the Applicant for attempting Modanifil to address his ADHD first, at any time between June 1, 2019, and February 11, 2024, he could have accepted Dr. Grafham’s recommended treatment. The Applicant did not do so and provided no explanation for his delay. It would be unfair for the Respondent to now bear the cost of the Applicant’s failure to comply with his own doctor’s recommendations by extending the timeline on this basis.
The Applicant’s Limited English Proficiency
84Finally, the Applicant claims that his limited English proficiency made it difficult for him to fully grasp the legal and financial implications of the documents that he signed. However, the issue at this stage is not whether he fully grasped the legal and financial implications of the various agreements he signed, but whether he had reason to make enquiries about his rights after signing the documents.
85From the evidence, it is clear to me that the Applicant understated his proficiency in English. The Applicant graduated from Mohawk College with a diploma in financial services, he worked as a financial advisor, sold insurance, and managed financial contracts with clients. While English is clearly not the Applicant’s first language, and I accept that he has some difficulty with the language, it was clear from the evidence that he understood the content of the 2019 Agreement and should have enquired about his legal rights once he became dissatisfied with the arrangement. He did not do so.
86As a result of the above, I find that the Applicant failed to establish that his delay was incurred on good faith.
Substantial Prejudice
87As I have found that the Applicant failed to meet the good faith requirement set out at s.2(8)(b), I am not required to consider s.2(8)(c). However, I will do so for completeness.
88In Deaville v. Boegerman (1984), 1984 1925 (ON CA), 48 O.R. (2d) 725 (C.A.), the Court of Appeal stated that the expiry of a limitation period creates a presumption of prejudice, however slight, to the responding party. In Vivier, at p. 457, the Ontario District Court pointed out that this requirement refers to substantial prejudice by reason of the delay and not substantial prejudice by reason of the application.
89As stated in Poirier v. Alie, [2007] O.J. No. 3798 (S.C.J.), at para. 28, prejudice may occur if the Respondent has organized her financial affairs in the belief that there will be no claim for equalization because the limitation period had passed. However, prejudice does not occur in situations where both parties were fully aware of, and accepted all along, that the equalization issues were “on the table”: Poirier, at para. 29. Generally, the length of time occasioned by the delay is a factor, along with the extent to which the responding party has rearranged their financial affairs: Hevey, at para. 40.
90The Respondent states that she has been substantially prejudiced because she had devoted significant financial resources to the renovation of the home after 2019. While I agree that she is prejudiced by the Applicant’s delay, I do not find that the prejudice was substantial within the meaning of s.2(8)(c). In this case, the parties were in active discussion about the division of their property up to at least 2023, when the Respondent consulted with a lawyer who advised her that she had overpaid the Applicant by $14,000. The Respondent was also aware that the Applicant was dissatisfied with the equalization he received and that the matter had not completely settled.
91Therefore, in this circumstance, I cannot find that the Respondent is substantially prejudiced by the delay.
Conclusion on [s.2(8)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) of the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html)
92As a result of the foregoing, the Applicant has failed to establish that the delay was incurred in good faith. Therefore, I cannot grant an extension pursuant to s.2(8) of the Family Law Ac
Part Six - Security for Costs
93As a result of my decision to deny the Applicant’s request to extend the limitation period, the Respondent’s cross-motion for security for costs is unnecessary. The Respondent’s cross-motion is therefore also dismissed.
Part Seven – Conclusion
94As a result of the foregoing, the Applicant’s motion to extend time under s.2(8) of the Family Law Act is dismissed. The Respondent’s cross-motion for security for costs is also dismissed.
95If the parties are unable to resolve the issue of costs, the Respondent may serve and file her cost submissions by January 30, 2026 and the Applicant may serve and file his cost submissions by February 13, 2026. The cost submissions shall be no longer than 3 pages double spaced. Bills of cost and offers to settle are not included in the page limit.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hasan Yabas Applicant
– and –
Victoria Yabas Respondent
REASONS FOR JUDGMENT
Law J.
Released: January 5, 2026
Footnotes
- Note, however, in Paulsen v Paulsen, 2017 ONSC 2937, where the court found that there was no positive duty to seek legal advice where the applicant failed to understand the nature of her pension as divisible property arising out of separation. In that case, the court also stated, and I agree, that a lack of funds to pay a lawyer can in some circumstances excuse the applicant from obtaining legal advice. However, I note that this is not the case here. At no time was it suggested that the Applicant was unable to afford legal advice, and in fact had multiple opportunities to do so.