Family Law Limitation Periods 101:
Family Law Limitation Periods 101
A limitation period is the maximum length of time for initiating a claim. Family cases provide a unique context for limitation periods. Lawyers and parties should be aware of the different limitation periods in family law. Missing a limitation period may result in a party being statute-barred from bringing a claim. In other words, that party will forever be denied the relief that they may have otherwise been entitled to.
Under Ontario’s Limitations Act, 2002, the basic limitation period is two years. An individual has two years after the date on which she or he discovered or ought to have discovered that they had a claim to commence a court proceeding. A basic example is a motor vehicle accident in which someone is injured. The injured person has two years from the date on which she or he became injured to sue the other driver in the accident. Once the two years expire, the injured person is statute-barred from pursuing a claim relevant to that injury against the other driver.
Equalization and Married Couples
Under section 7(1) of Ontario’s Family Law Act, family litigants are barred from bringing a claim for equalization against their spouse/former spouse on the earliest date of the following three events:
- two years after the marriage is terminated by divorce or judgement of nullity;
- six years after they separate and there is no reasonable prospect that they will resume cohabitation;
- six months after the first spouse’s death.
This means you cannot seek to recover your share of the net family property if any of these apply. It is also important to note that you are statute barred the moment any of the three events occur.
For instance, let us assume you and your spouse are separated for two years. He/she then applies for a simple divorce and it is granted. You are then barred from bringing an equalization claim as soon as two years lapses after the divorce, even though by that point only four years have passed since your separation.
Similarly, let us assume that two months after your separation your spouse dies (possibly from all the negative energy you directed towards them). You then have six months after death to make a claim for equalization (against their estate in estates court) even though you have not divorced or have even separated for that long.
Common Law Partners
Another limitation period that may apply in a family law matter was clarified recently in case law and is most relevant for separating common-law partners. Since common-law partners are not privy to the remedies offered through equalization under the Family Law Act, they often pursue trust claims against their ex-partner’s real property, most often being the family home that the parties lived in during their relationship. For this type of claim, there is a ten-year limitation period.
In the case McConnell v. Huxtable, 2013 ONSC 948 (CanLII) the Hon. Justice Perkins clarified this limitation period for equitable claims in real property. This was a case where a party sought a remedial constructive trust for an ownership interest in the former family home. His Honour determined that this was an equitable claim for an ownership interest and was thereby governed by the Real Property Limitations Act, setting the limitation period at ten years, not two years as prescribed by the Limitations Act, 2002. Notably, all equitable claims unrelated to land are subject to the two year limitation period set out in the Limitations Act, 2002.
Luckily, there are some family law issues that do not have any limitation periods, with some exceptions. For example:
- child support;
- spousal support;
- custody/access; and
- applying for a divorce.
Where litigants seek support claims, they are not barred from making a claim. However, they are restricted to how much of a claim they can make. Specifically, they are restricted to far back in time they can go in their claim for support. In D.B.S. v. S.R.G,  2 SCR 231, the Supreme Court of Canada stated that when litigants bring support claims, they can go back up to three years for retroactive support to a point when the claimant provided notice. A claimant can demand support for a period going back even further in time if the support payor engaged in blameworthy conduct i.e. they concealed their sources of income.
It is important that you speak with a lawyer as soon as you think you have a claim, and you are interested in pursuing same. Otherwise, you might miss the opportunity to pursue your spouse for an amount to which you may be entitled. Contact one of your lawyers at David H. Nuri, Barrister & Solicitor to ask about your limitations issues and we would be happy to help.
Written by Maxine Jagdeo.