Separated or Divorced? Time Limitations for Starting Family Law Claims

cutting up divorce papers

Although all couples come together with the hopes of never breaking-up, unfortunately break-ups happen often and certain rules are in place to protect both parties because of this. When it comes to marriages and marriage-like relationships, there are certain time limitations for filing family law claims that everyone should be made aware of. Please see below for more information on these specific time limitations.

Halliday v. Halliday

In the case of Halliday v. Halliday, 2015 BCCA 82, the former Mrs. Halliday commenced a claim to the courts for spousal support and the division of marital assets against her ex-husband. However, she did so late and without any legal help.

After hearing Mrs. Halliday’s claim, the British Columbia Court of Appeal stated the following (emphasis added):

[1] Family law cases contain many traps for the unwary. The Supreme Court Family Rules (the “Family Rules”) and the different legislative regimes are complex. Litigants must select with care the appropriate procedures under Family Rules. They must be mindful in seeking relief of the distinctions within and differences between federal and provincial legislation. While the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”), and the Family Relations Act, R.S.B.C. 1996, c. 128 (the “FRA”), to the extent that it still applies, contain many similar provisions, they are not identical.

[2] Particular care must be taken with regard to the procedures and time limits to bring proceedings to set aside provisions of a separation agreement. The fact that many family law litigants are unrepresented compounds the problem. The fine distinctions in procedure and in the legislation are often understandingly lost to the legally untrained and, I might add, to those that are legally trained. Recognizing the distinctions can be the difference between success and failure. This proceeding, to date, is a cautionary tale as to what can go wrong.

If you are contemplating bringing a family law claim in British Columbia, such as to claim for child support or to set aside provisions of a Separation Agreement dealing with spousal support or division of property, there are “limitation dates” you need to be aware of.

red exes on hands

Factors to Consider

The amount of time one has to commence a legal claim against a former spouse is tricky and depends on several factors, including:

• the type of claim or legal remedy you’re seeking;

• whether the parties were married or “common law” spouses;

• when the parties divorced or separated; and

• any applicable extensions of time.

These factors are discussed further below.

Type of Claim Matters

There is no time limit or “limitation date” for child support applications, provided the child is still entitled to child support. Under the Federal Divorce Act, children of the marriage are presumptively entitled to child support until the age of majority (i.e. age 19). However, children of the marriage may be entitled to support if they are older but unable to withdraw from the parents’ charge because of illness, disability or other cause, including full-time attendance at a post-secondary educational institution. Under British Columbia’s Family Law Act, similar child support entitlement is extended to children of common law spouses.

However, claims for division of family property, division of family debt, division of pension entitlement, and spousal support are subject to a two-year limitation date for commencing a claim.

The question then becomes, when does the two-year limitation period start to run?

couple standing apart

Married vs. Common Law

Spouses; Separation Date

Under British Columbia’s Family Law Act, the two-year time limit to commence a family law claim depends on the marital status of the parties.

In the case of married spouses, the two-year limitation commences from the date of divorce or from the date the marriage was declared a nullity.

In the case of unmarried or “common law” spouses, the two-year time limitation commences from the date of “separation”. In British Columbia, common law spouses are deemed to have separated following the intention of one spouse to repudiate or end the marital relationship; and, second, an action consistent with that intention.

Under the Divorce Act, there is no express time limitation period within which “spouses” or “divorced spouses” must bring a spousal support application.

Extensions of Time

Under the Family Law Act, the two-year time limit to commence an action is suspended while the spouses are engaged in family dispute resolution with a family dispute resolution professional. In order for this exception to apply, both parties have to be involved in family dispute resolution with a family dispute resolution professional. For example, one party’s retention of counsel coupled with attempts to start settlement discussions will likely not by itself meet this exception to suspend the time limit.

In Sum – Avoid Traps for the Unwary

The Halliday case underlines the importance of informing oneself of the relevant law and limitation periods when commencing a family law claim.

Following the expiration of the limitation period, former married or “common law” spouses presumptively lose their entitlement to spousal support or a division of property, and are viewed no differently than other, arms-length individuals. If you do not lose you’re entitlement outright, you will expend considerable cost to overcome the deadline and presumptive loss of entitlement.

To avoid the several traps that a family law claim can pose, including limitation dates, it is often advisable to seek the assistance of a lawyer without delay!

Consulting a Divorce Act & Family Law Professional

There are a number of factors to consider before filing a family law claim, especially when it comes to family disputes that fall under the Divorce Act and Family Law Act clauses. To avoid confusion, delays, and frustrations – it is recommended to speak with professional legal counsel to answer any questions one may have.