One area where the law in British Columbia continues to treat common-law and married couples differently is how much time following the breakdown of their relationship a person has to initiate a family law claim against their former spouse.
While claims for child support are not subject to a deadline (referred to as a “limitation date”), claims for division of family property, division of family debt, division of pension entitlement, and spousal support are subject to a 2-year limitation date for initiating a claim.
The question is when the 2-year limitation period starts to run.
For common-law relationships, the limitation period begins to run on the date the spouses separate. This can be somewhat complicated, as former spouses can continue to live in the same house following separation due to their family situation (i.e. not wanting to move away from their children) or because of their financial situations (i.e. they cannot afford to maintain two separate households). In some circumstances, the spouses may have different views on which day they separated.
For married couples, the limitation period begins to run on the date the Court grants a divorce judgment or declares the marriage to be a nullity.
As an example, either member of a married couple, separated for 6 years, is able to initiate a claim against the other for division of family property or spousal support so long as a divorce has not been granted. For a common-law couple who has been separated for 6 years, each member lost the ability to seek a division of family property 4 years prior, i.e. two years after separation.
Section 198(5) of the Family Law Act provides that if the parties are engaged in “family dispute resolution” with a “family dispute resolution professional” (which the Family Law Act defines as being a family justice counsellor, a parenting coordinator, a lawyer, a mediator, or an arbitrator), then the running of the limitation period is suspended while they are doing so (i.e. it is put on hold).
The effect of this provision is that if certain attempts to resolve a family law dispute outside of court are made, then the ‘clock’ temporarily stops. This would prevent a couple engaged in active negotiations from having to start court proceedings to preserve their rights just because of the passage of time.
Following the expiration of the limitation period, former spouses lose the property rights provided to them under the Family Law Act and are viewed no differently than other, arms-length individuals. This means that unless property is jointly owned (such as a home where both parties are on title), a spouse may lose the ability to seek an interest in the property retained by the other spouse following the breakdown of their relationship.
If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.