December 13, 2010 By: Marta Siemiarczuk
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The Ontario Court of Appeal recently reviewed the law as it relates to the two-year limitation period for commencing claims for equalization and support pursuant to the Family Law Act after the court has granted a divorce.

This case, El Feky v. Tohamy, was both interesting and disturbing at the same time. The parties involved were married in Egypt in 1982. They moved to Canada and resided in Ontario from 1991 until they separated in 2004. In 1992, the parties jointly owned a halal supermarket as well as a company with an investment property likely worth several million dollars. By the time the parties separated, their two sons owned both the supermarket and the investment company with each having a 25-per-cent interest in them.

Upon separation, Naima Mohamed El-Sayed Mohamed El Feky returned to Egypt. Just prior to her departure, Adel Mohamed Tohamy provided her with a document purporting to be a settlement agreement. Pursuant to that agreement, El Feky was to receive $100,000 in lump-sum spousal support. She further released all other rights to equalization of net family property. She signed it without legal advice.

In 2006, El Feky was served with a divorce application. Presumably, as she didn't respond to it, the parties were formally divorced that year. Subsequently, after her health began to deteriorate, she returned to Canada in 2008. At that time, her son presented her with a second separation agreement on behalf of Tohamy. This second document purported to provide her with a condo to live in while in Canada as well as $150,000 as an equalization payment with further releases of everything, including her equity in the matrimonial home.

El Feky's son then took her to see a lawyer to get independent legal advice on the second agreement. Obviously, Tohamy was concerned about the enforceability of the first document for which she had no legal advice. Not surprisingly, the lawyer told her not to sign the agreement as it was entirely unfair and suggested she apply for legal aid. Unfortunately, after she was refused legal aid funding, her son took her back to the same lawyer while threatening that if she didn't sign the agreement, she would be homeless and he would "leave her there."

The lawyer, of course, was very uncomfortable as an argument broke out between him and the son. Aside from the obvious issues with this meeting, including the coercion and duress, El Feky's evidence centred on language issues given that she didn't speak English very well while the lawyer didn't know Arabic. At the same time, she didn't read English well and didn't have any disclosure upon which to base a financial decision. But due to the duress she was under, she signed the agreement. The lawyer also signed a certificate of independent legal advice.

What's most telling is the handwritten note El Feky put at the bottom of the agreement in Arabic while signing it. "I will never forgive you, and will never ever accept what you have done to me," she wrote. "Allah (Alone) is Sufficient for me, and He is the Best Disposer of affairs (for me). And you are unjust."

Frankly, it doesn't get much clearer than that.

Four months after the two-year limitation period had expired, El Feky commenced her application for equalization of net family property, support, and ancillary relief. In turn, Tohamy brought a motion for summary judgment relying on the separation agreement as well as the expiry of the limitation period. The motions judge granted him summary judgment, which El Feky appealed.

The Court of Appeal, per Justice Marc Rosenberg, held that the motions judge made errors of law on two aspects of the three-part test to determine whether an extension of the limitation period ought to be granted and the motion for summary judgment dismissed.

On the first point, Rosenberg ruled El Feky did in fact have apparent grounds for relief. At least on the face of it, she had a real claim for equalization, among other relief, under the Family Law and Divorce acts. In particular, Rosenberg held that the motions judged erred in considering whether El Feky had grounds for setting the agreement aside rather than whether she had a case for an apparent claim. In addition, he said El Feky, contrary to the finding of the motions judge, had acted in good faith in that she had no ulterior motive. The motions judge looked at the issue from the perspective that she should have further investigated when her divorce had actually gone through.

Finally, given the other two findings, the motions judge didn't address the issue of prejudice to Tohamy. However, the appeal court determined there really was no prejudice to him as he was at all times aware of exactly what El Feky's claims were and the delay was only four months after the expiry of the limitation period.

The decision should be commended and should serve as a reminder that the courts will, whenever possible, apply the law to ensure that fairness prevails.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca

[This article is reprinted with permission and first appeared in the December 2010 issue of The Law Times.]

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law