Timing in Family Law Matters

Timing in Family Law Matters

Posted October 5, 2015 Category: Individuals/Families

It is not uncommon for separating spouses to simply leave matters as they fall rather than address the legal issues arising from the breakdown of their relationship. The reasons for doing so vary. The spouses may be parting amicably and may not feel that formal resolution is necessary. Even if their split is unfriendly, they may not have dependent children to motivate them to take immediate steps to deal with their legal issues. Often times, they are simply inclined to avoid the conflict, headache and expense of dealing with the fallout from the end of their relationship.

While allowing each other some time for the emotional dust to settle after a separation is often beneficial, as times goes on so do the lives of the parties. What may have seemed unnecessary to deal with at separation can later become a hotly contested issue. A spouse may wish to sell their home. They may wish to remarry or retire. Allowing too much time to pass can negatively impact potential legal claims and there are a number of timelines which separating spouses should be mindful of.

Limitation Periods in Family Law Matters

Most legal claims must be brought before the Courts within a limited period of time (this is called the limitation period). If a claim is made outside of its relevant limitation period the Court can dismiss it. These timelines are important even for a spouse who intends to settle their legal issues by way of a Separation Agreement. Once a relevant limitation period for a claim has expired, the other spouse may have little motivation to engage in negotiations relating to that claim.

The limitation periods for family law claims vary depending on the claim being made. There are no limitation periods for applications for divorce, child support, or spousal support and these claims may be made at any time after separation. However, delay in making an application may be a detrimental factor in a judge’s determination of whether or not spousal support is warranted in the circumstances.

For married spouses, applications to equalize net family property under the Family Law Act are limited to the earliest of: six years from the date of separation, two years from the date of divorce, or six months from the date of a spouse’s death. The Court has the discretion to extend these timelines if the applying spouse can demonstrate that the delay was incurred in good faith and that the other party will not be substantially prejudiced by the late commencement of the application.

For common law spouses, or in some instances married spouses, who have claims to an interest in the real property of the other spouse, the applicable limitation period is 10 years under the Real Property Limitations Act. Common law spouses, who do not have a claim to the real property of their spouse but may have a claim to receive a monetary settlement for their contributions towards the wealth accumulated by their spouse during the relationship, must file their claim within two years of its discovery. The date of discovery is usually the date of the spouses’ separation.

Determining the applicable limitation period for a spouse’s claims can be difficult, especially for common law spouses. We encourage all separating spouses to seek legal advice, by way of a preliminary consultation so that they gain a better understanding of family law as it relates to their circumstances and to ensure that any relevant limitation period is not missed.

Posted October 5, 2015 Category: Individuals/Families

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