Part II: Applying for an Incapable Spouse’s Entitlement to Equalization
By: Diya Chopra, Articling Student and Mary Wahbi, Partner
This is the second article in a three-part series discussing the powers and limits of an attorney, acting under a power of attorney for property, in the context of Family Law.
Section 7(2) of the Family Law Act imposes a strict limitation period on equalization applications. Where a spouse dies without having made a claim for equalization, his or her estate is precluded from applying for equalization. In essence, the right to claim dies with the spouse.
Apart from this restriction, where a spouse applies for equalization before he or she dies, the application may be continued by the attorney after the spouse’s death. An attorney can also make an election under section 6(1) of the FLA where the payor spouse has died. Furthermore, an attorney acting under a power of attorney for property can apply for equalization on behalf of the incapable person under section 5(1) of the FLA. This was the case in Anderson v. Anderson Estate, 1990, 74 O.R. (2d) 58 (Ont. H.C.) where the Court...
Photo by: Keoni Cabral