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MARITAL PROPERTY - Division of family property on death - Practice and procedure - Limitation periods

Tuesday, January 23, 2018 @ 8:33 AM  


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Appeal by Baker from the summary dismissal of his application for an order dividing the property of his estranged spouse, Ramsdell, following Ramsdell’s death. Baker and Ramsdell married in 2006 and separated in 2010. Baker filed a divorce petition in February 2014 and noted Ramsdell in default on August 20, 2014. Ramsdell had sold the matrimonial home without Baker’s knowledge or consent on August 13, 2014. Ramsdell died intestate on October 12, 2015. In March 2016, the Public Trustee of British of Columbia was appointed as the administrator of Ramsdell’s estate and informed Baker of its intention to distribute the entirety of the estate, valued at $212,000, to Ramsdell’s two estranged adult children. Baker filed a Statement of Claim for Division of Matrimonial Property and Unjust Enrichment in May 2016. The chambers judge summarily dismissed Baker’s matrimonial property claim, having found that the application was out of time because it was filed five-and-a-half years after the parties separated. The judge determined that the claim fell because the Matrimonial Property Act (MPA) stipulated that Baker was required to file his application for a matrimonial property order within two years of separating from the deceased.

HELD: Appeal allowed. Baker was subject to two different limitation periods under the MPA: 1) the limitations period for making a matrimonial property application after separation; and 2) the limitations period for making a matrimonial property application after filing a statement of claim for divorce. The first limitations period expired two years after the parties separated in 2010. That limitations period was revived when Baker filed his divorce petition in February 2014. Pursuant to s. 6(1)(a) of the MPA, Baker was able to commence his matrimonial property application any time after filing his claim for divorce. This limitation period would have expired two years after the couple received a divorce judgment. When Ramsdell died on October 12, 2015, the parties had yet to receive a divorce judgment. Accordingly, Baker was well within the limitations period stipulated by s. 6(1)(a) of the MPA and could have commenced an application for a matrimonial property order immediately prior to the deceased's death. Section 11 of the MPA allowed a matrimonial property order to be made to the surviving spouse as long as they were able to commence the application prior to the death of the other spouse and the application was brought within six months of the grant of probate or administration. Both of these preconditions were met, therefore the appellant was eligible to receive a matrimonial property order from the deceased's estate. The chambers judge's order summarily dismissing Baker’s application for a matrimonial property order was vacated and the matter was returned to the Court of Queen's Bench.

Baker v. Ramsdell Estate, [2017] A.J. No. 1415, Alberta Court of Appeal, R.L. Berger, B.K. O'Ferrall and M.G. Crighton JJ.A., December 20, 2017. Digest No. TLD-January222018005