“The motion judge reasoned that summary judgment was available to dismiss the appellant’s claims largely because the limitation period for equalization claims set in the FLA had long expired.
Section 2(8) of the FLA provides:
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.
Each of the requirements must be met as a pre-condition to granting the relief: Vivier v. Vivier, 1987 CanLII 8339 (ON SC), 5 R.F.L. (3d) 450 (Ont. Dist. Ct.). The “relief” is not the extension of time but the relief claimed under the FLA such as equalization: Scherer v. Scherer (2002), 2002 CanLII 44920 (ON CA), 59 O.R. (3d) 393 (Ont. C.A.), at para. 16. In determining whether “apparent grounds for relief” exist, the court may make a limited inquiry into the merits of the proposed claim. The question to be answered is “[b]ut for the limitation period that acts as a bar, are there apparent grounds to support the claim?”: see Werth v. Werth, 2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay that has been incurred in good faith. The “good faith” requirement requires the applicant for an extension to show that they acted “honestly and with no ulterior motive”: Hart v. Hart (1990), 1990 CanLII 12268 (ON SC), 27 R.F.L. (3d) 419 (Ont. U.F.C.), at p. 432. Lastly, it must be demonstrated that no person will suffer substantial prejudice by reason of the delay. The mere showing of prejudice is not sufficient; rather, it must be demonstrated that the prejudice will be substantial. 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: see e.g., Douthwaite v. Douthwaite (1997), 1997 CanLII 24487 (ON SC), 32 R.F.L. (4th) 90 (Ont. Gen. Div.).”