What is a Limitation Period in Ontario

Are you going through a divorce and want to know about specific timelines you need to meet? Keep reading to learn more about limitation periods in the divorce process!

A limitation period is the amount of time that a party has to make a claim under federal or provincial law. For example, if a limitation period is three years, then a party has three years to make a claim. If the party does not make a claim within the prescribed three-year period, they will be unable to bring a claim altogether. In the context of divorce, there are various limitations periods that spouses should be aware of.

Under section 7(2) of the Family Law Act (“FLA”), a spouse wishing to bring an application for an equalization payment must do so before the earliest of the following dates:

1. Two years after the day the marriage is terminated by divorce or judgement of nullity;

2. Six years after the date of separation; or

3. Six months after the first spouse’s death.

If the parties fail to make a claim within the appropriate time frame listed above, they will be unable to bring an application to equalize net family property. However, section 2(8) of the FLA allows the court to extend the limitation period for applications for equalization payments where:

1. There are apparent grounds for relief;

2. The delay has been incurred in good faith; and

3. No person will suffer substantial prejudice because of the delay.

Although there is a possibility for an extension under section 2(8) of the FLA, divorcing couples should always ensure they bring applications prior to the expiration of the limitation period, as an extension is not guaranteed.

In addition, a recent court decision found that section 4 of the Limitations Act applies to claims to set aside marriage contracts.1 Section 4 of the Limitations Act says that a party has two years from the date that a claim is discovered to bring an action against another party. In the context of divorce, this means that spouses have a two-year limitation period to bring a claim to set aside their marriage contract once it is discovered, failing which they will be unable to bring an action altogether.

It is important to note that there is no limitation period to bring a claim for either spousal or child support as long as the person is legally entitled to such support under the applicable legislation; however, applicants are unlikely to successfully claim retroactive child support once they no longer fit under the legal definition child.

Understanding limitation periods can be difficult and if you are going through a divorce, you want to ensure you are meeting all applicable deadlines. If you are looking for more information about how limitation periods work and if any apply to your case, do not hesitate to contact us and one of our experienced Family Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.

1 FK v EA, 2019 ONSC 3707.

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