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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 01-04-2006, 03:32 AM
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Default Limitation Act - No time limit out of curiosity

Jeff or Lindsay,

Out of curiosity could you clarify this further. Is there a time limit to make a claim for spousal support under the Family Law Act of Ontario.

Does the Limitation Act apply for the claim to be made. Does the claim have to be made before the 2nd anniversary?


Limitations Act, 2002 S.O. 2002, chapter 24

Schedule B

http://www.e-laws.gov.on.ca/DBLaws/S...sh/02l24_e.htm


NO LIMITATION PERIOD

No limitation period

16. (1) There is no limitation period in respect of,

(c) a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be filed under section 35 of that Act;

It is apparent from the language in the Divorce Act (Canada) language that there is no time limit for married couples to claim and pursue support even after divorced as it lists "former spouses" in the language.


Divorce Act (CANADA)

R.S., 1985, c. 3 (2nd Supp.)

http://laws.justice.gc.ca/en/d-3.4/49354.html


COROLLARY RELIEF

Interpretation

Definition of "spouse"
15. In sections 15.1 to 16, "spouse" has the meaning assigned by subsection 2(1), and includes a former spouse.

R.S., 1985, c. 3 (2nd Supp.), s. 15; 1997, c. 1, s. 2.
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Old 01-05-2006, 05:24 PM
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Default

As you correctly point out, there’s no statutory limitation to pursue a claim for spousal support under the Divorce Act.

Up until January 1, 2004, if you had a claim for spousal support under the Family Law Act, you had to pursue this within 2 years. This led to an inequality in that a previously married spouse could pursue spousal support after any length of time, but a previously common law spouse lost their claim after 2 years.

This has now been amended with the provision of the Limitations Act that you point out. So, now there is no longer a statutory time limit for pursuing spousal support.

As a practical matter, the longer you wait to pursue a spousal support claim, the harder it is to be successful. You can’t just sit around for 10 years and then expect to obtain spousal support as if nothing had happened.

While there are no statutory limits on pursuing spousal support, there is an equitable doctrine known as "laches" which essentially boils down to a general statement that delaying your claim will be prejudicial to you.

If your claim for spousal support under the Family Law Act arose prior to 2002 (normally your claim starts on the date of separation) it will be statutorily barred now as this new legislation isn’t retroactive.

There aren’t many time limits in family law. The only other one I can think of off the top of my head is regarding the division of property. An application to equalize net family properties must be brought:

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death.
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Old 01-05-2006, 05:37 PM
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Thanks Jeff for clarifying.
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