Marriage contracts, often referred to as “prenuptial agreements,” might may not be the most exciting thing to discuss when planning a wedding, but there are certainly a number of good reasons to have one. A marriage contract allows the parties entering into it to decide what would happen to their property should their relationship come to an end. Of course, it’s not uncommon for people to either regret singing a contract or to think it’s no longer fair when it comes time to abide by its terms.  A recent decision from the Ontario Superior Court of Justice looks at the time restrictions involved with trying to set a marriage contract aside.

The marriage contract and the eventual separation

The couple involved started dating in 2000 and began living together four years later. They became engaged shortly after that and had a wedding day set for July 20, 2005. Prior to the wedding date, they signed a marriage contract. The marriage contract waived spousal support and also stated the couples would keep the property they owned prior to the marriage. Neither person in the relationship received legal advice before signing the agreement.

The marriage came to an end on August 23, 2012. The husband moved out of the home, which was owned by the wife. The wife gave the husband $1,600 so he could put first and last month’s rent down on an apartment, but told him that’s all he would be getting.

The husband soon has second thoughts about the marriage contract he had signed. He retained legal counsel and brought an application for spousal support and equalization of property. This occurred on August 24, 2017. However, despite the long period between the separation and the motion being filed, the husband’s lawyer did notify the wife of his intention to bring the motion in 2015. The wife’s position as that it was too late for the husband to bring the motion, saying it was statute barred under the Limitations Act, 2002, which provided the husband with only two years to do so.

Was the motion too late?

The court determined that the husband’s request was a claim as it pertains to the Limitations Act. This meant the two-year limitation period set out in the Act did apply to the husband’s motion.

The court then addressed when the clock starts ticking on such a claim, stating that the countdown started upon “discoverability” of the right to bring an action, which is the date he realized he suffered loss and that the best way to address it was through the courts. But when did this happen? The court found that the date of discoverability was day the husband decided to meet with a lawyer. This was the day he was made aware of the issues of validity concerning the marriage contract. The issue being that neither party had retained legal advice. This was well over two years before the husband took action.

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