On appeal, the appellant argued that the motions judge erred in allowing the respondent’s motion for summary judgment when he failed to serve a response as required by the RFS.
The Court ruled that the Motions Judge erred in concluding that a response was not required before proceeding with a motion for summary judgment. The respondent’s failure to adequately disclose financial assets violated the philosophy of the RPF, which recognizes that “the most fundamental duty in family law is the duty to disclose financial information,” the court said. This also applies to summary judgment motions, he added.
As to the limitation period, the Court held that the Motions Judge erred in imposing on the appellant a standard of “established fraud”, which is higher and inconsistent with that required by subsection 2 (8).
Section 2 (8) of the FLA allows for an extension of the prescribed time limit where there are apparent grounds for redress, relief is not available due to a delay suffered in good faith, and no one will suffer harm. substantial damage due to the delay. All three were present in this case, the Court said.
Further, the Motions Judge erred in inferring that the appellant should have known and understood the structure of trusts, since she did not appear to have received independent counsel on this matter. “These determinations relate both to the respondent’s delay and to its good faith and could not be made on a motion for summary judgment, at least in the absence of a response from the respondent,” said the Court.