Limitation Periods in Family Law

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Child Support, Division of Property, Divorce, Family Law, Marriage Contracts, Separation, Separation Agreements, Spousal Support0 Comments

A limitation period is the amount of time within which the law permits one to bring a legal claim or action. Claims started after a limitation period has ended can be barred. Under the Limitations Act, there is a general two-year limitation period. In family law there are several different limitation periods that prospective and current family law clients should be aware of.

Under the Family Law Act, married spouses may make a claim for equalization of net family property within the earliest of (a) two years after the marriage is terminated by divorce or judgement of nullity; (b) six years after the spouses separate and there is no reasonable prospect that they resume cohabitation; or (c) six months after the first spouse’s death.

The court may extend the limitation period for bringing an equalization claim, if it is satisfied that (a) there are apparent grounds of relief; (b) relief is unavailable because of delay that had been incurred in good faith; and (c) no person will suffer substantial prejudice by reasons of the delay.

Other family law claims, such as claims for spousal support are not subject to any limitation periods. Similarly, there is no limitation period for a claim for ongoing child support provided the child is still a child of the marriage.

Further, there are no limitation periods under the Family Law Act for setting aside all or part of a domestic contract. Domestic contracts include separation agreements, cohabitation agreements and marriage contracts (also known as prenuptial agreements).

In a recently released Ontario Court of Appeal case, Kyle v Atwill, the court discussed the “unique situation of spouses and families on the breakup of a marriage” requires generous limitation periods to “account for the need to allow spouses more time to try to resolve their property issues without having to go to court, and the fact that a spouse or former spouse’s support needs can change over time and may be addressed whenever they do.” (at para 32)

There are limitation periods under other statues, such as the Canada Pension Plan Act that family law clients should be mindful of as well. Under this statute, there is no limitation period for divorced spouses to apply for a division of pension plan credits after they are divorced. It should be noted that separated common-law spouses need to be separated for a year before they can apply for a division of pension plan credits and must make a claim within three years of separation. Similarly, spouses must apply for a division of pension plan credits within three years of a spouse’s death.

At Gilbertson Davis LLP, our family law counsel can assist with your family law inquiries. We offer advice to and represent clients on a full range family law matters, including divorceseparationchild support, spousal supportchild custody and accessdivision of property, and domestic contracts. Our mission is to provide creative, sensible, cost-effective and long-term resolutions to family law disputes. Please contact Gilbertson Davis LLP to schedule a consultation.

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About the Author

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.

Kimberley practices exclusively in family law, from contentious custody and access disputes, child and spousal support claims, to complex property division, adoption applications, and mobility issues. Kimberley is a skilled litigator and experienced in alternative dispute resolution. Bio | Contact

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