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  • Time Limit on Request for Spousal Support

    Just wondering if anyone has any experience with this..

    I don't know the exact section, but apparently under the Family law Act, any claim a party to a divorce may have for spousal support may be barred by the passage of time if they do not start Court proceedings within two years of separation,,,(not an exact quote)

    Our situation:

    My fiance's wife left Sept 1 2004. I met him in May of 2006, so I was not involved in the breakup.

    SA was drawn up November 2004, dealing with all issues. He took on all debt, custody of the kids, and ownersip of mat home. She waived equalization, and received $20,000 in lieu of future support claims. He ended up over $85,000 in debt.

    He filed for divorce in the Spring of this year, over 5 1/2 years since she left. She filed an answer requesting $1700 a month in spousal support.

    Given the passage of time, I would have thought she couldn't get it. My fiance is spending all of his limited savings (we are not well off) on a lawyer, while she gets legal aid.

    Has nyone had any experience with this particular aspect of th Family Law Act? Our lawyer says that because itis a marriage of "significant length" (17 years) that she may have a case. (we will be taking this point up with them this week).

    Anyone ever become across this before? Can we not argue that she missed her timeline to request spousal support?

    Any real-life experience or advice would be appreciated. He's spending all his limited savings on the lawyer, and does not have the money for her support. I pay mine and my son's expenses, and we still live paycheque-to-paycheque. Any advice you have would be appreciated (we meet with the lawyer on Friday morning).

    Should note that our lawyer is arguing that the $20,000 pretty much cover any equalization, she waived spousal suppport; our lawyer is arguing this.

  • #2
    He has custody of the children; you do not mention that she is or has paid chld support. She has legal aid; presumably her income is minimal but she cannot claim 0 income. She has a legal responsibility to support the children and must pay some support. She is in arrears and a deadbeat in other words.

    He took on the family debt. These circumstances are vague from your description. Basicly though, look at his debt repayment, the effect it has on his NDI (after tax, after expense income) and try to show that this is significant. Argue that this amount should be deducted from his income. It is an argument, not a slam dunk.

    What was the equity in the house at the time? More than $40k or less? Was the $20 factually a fair settlement for the equalization of the matrimonial home and other property or not? Your fiance jumped the gun; after 6 years from separation one cannot make a further equalization claim. Pay close attention to the dates, a few weeks here may make a difference.

    Spousal support with children involved should be based on your fiance's after tax income, and after children's section 7 expenses are paid, and after any benefits (Child Tax Credit etc) are received, as well as after CS is paid by the mother. Child Support must come first, by law. If she ends up receiving some spousal support, this is taxable income and she must pay child support based on including that income.

    If your fiance's lawyer hasn't discussed the above points, he has the wrong lawyer. Regarding costs, there is a degree of paperwork and fiancial calculations that will have to be done regardless; he is probably as well off getting that done by this lawyer. However he wants to limit his costs and he wants to get the most out of what he pays, he should make sure he has an experienced divorce lawyer and that he takes control of his own file. Don't let the lawyer run your case, run it yourself once you are informed. This is just like letting a contractor decide how to renovate your house, you would get ridiculous costs. Educate yourself and take control.

    Comment


    • #3
      Spousal support is based on need and length of marriage in most cases.

      There has been a substantial amount of time that has passed without her making an application for spousal support. She will have a hard time explaining why she took so long to bring an application for it.

      You can defend yourself against this, and often people do very well against lawyers.

      Mess has made some very good points about child support and the property issues. You will need to get your fiance to do some homework, and show how the division of assets was divided.

      Comment


      • #4
        You have both made some very good points, just want to clarify some of the details.

        She left september 2004. No one, including the kids, knew where she was for more than a month. This is why he claimed custody, and the children greed. She has never paid CS, nor would he ask her to. At the time of separation, his daughter was 16, son was 18 (with developmental difficulties). He supported them then, and continues to support his daughter when necessary (his son, tragically, died last year at the age of 23).

        Because he did not know any better, she continued to receive the Child tax benefit for the daughter (although, she would not cash the cheque unless the daughter agreed to give her $$$ from it). By all rights and laws, he had custody and the benefit should have gone to him. Once Ifound this out, I helped him resolve the situation (took awhile...ever dealt with Revenue Canada?). He received back payment, she owes them the money back (shows on her financial statement).

        Her income is minimal...lives on welfare. Lost her job in 2007, because she kept cancelling shifts...her fault.

        She now claims she is too depressed to work. We are asking for proof of this illness (she's never seen a doctor, counsellor, or sought treatment) and proof of her claim that she lived in he car for a year (total BS, and everyone in this small town knows it). Children are not involved in th support laim, she simply wants him to support her.

        20$K is actually a fair equalization...property is not worth much (about 85$K at separation) and debts were high (over 40$K). He might be a bit short, but not much.

        She has now requested an "opinion of value" from a realtor as to what the house was worth then and now, which he has to pay for! Nice to have legal aid, isn't it?

        I'm arranging that now (he's too busy working) and hope to have it done before we meet the lawyer on Friday.

        For the record, our lawyer is looking into all of this for us, I think we have the right one. I have spent a lot of time educating myself on these matters, just missed the one on 6 years for equalization (if we had known, he would have waited until now to file). We are hoping that the 2 year limit on SS will hold up, though, and the lawyer is going to argue this.

        Ex has filed a motion for Oct 5 and a Settlement Conference for Oct 15...in the end, this just ends up costing him $$$ and her nothing....hardly seems fair....

        Comment


        • #5
          Valuation is based at time of separation generally.

          Comment

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