Time Limitations: Filing for Divorce or Division of Family Property (and Spousal Support Under the Family Law Act)

Divorce Agreement

Time Limitations: Filing for Divorce or Division of Family Property (and Spousal Support Under the Family Law Act)

In Alberta, restrictions govern when and how certain claims may be brought before the Court: these deadlines are often referred to as limitation periods.

This article briefly reviews when claims for Divorce, division of family property, and support under the Family Law Act ought to be filed and the potential consequences of failing to do so in a timely manner.

We strongly suggest obtaining independent legal advice to determine how theses periods will apply to you and your particular situation.

Divorce Act

There are no statutorily enforced deadlines by which a party must file a claim for Divorce under the Divorce Act. Consequently, it is possible to be living separate and apart for years before filing a claim for Divorce. However, there are implications for failing to file a claim in a timely manner of which individuals should be aware.

For example, when an individual files a claim for Divorce, that party can also seek corollary relief (namely spousal support and child support), in addition to an actual Divorce Judgment. Failure to bring your Divorce claim in a timely manner can jeopardize your claim for spousal support. The Alberta Court of Queen’s Bench and Court of Appeal have found on numerous occasions that failing to bring a spousal support claim in a timely manner is contrary to public policy and has led, in some instances, to the Court dismissing an individual’s claim for spousal support. Consequently, if you intend to seek spousal support (or child support), it is generally in a party’s best interest to file a claim for Divorce and corollary relief sooner than later.

Additionally, the failure to commence a claim for Divorce can also impact a party’s ability to bring a claim for division of family property.

Family Law Property Act

Under the Family Law Property Act, both a spouse and an adult interdependent partner may bring a claim to divide the parties’ family property.

For separating spouses, a claim for division of family property must generally be brought within 2 years of a decree nisi, a declaration of nullity of marriage or Divorce Judgment. For most spouses, this means that delay in obtaining a Divorce Judgment can effectively extend the period in which the parties can bring a claim for division of the family property. This can lead to situations where parties are contemplating division of assets years after the parties separated when the original assets flowing from the relationship may no longer exist. This may lead to unnecessarily messy and contentious legal battles which may not have otherwise occurred.

As it relates to common law partners, otherwise known as adult interdependent partners in Alberta, an individual may file an application for a family property division order no later than 2 years after one knew, or ought to have known, that they had become a ‘former adult interdependent partner’. ‘Former adult interdependent partner’ is a specific definition with a specific test as set out in the Adult Interdependent Relationships Act. Two of the most common methods of becoming a former adult interdependent partner involve:

  1. entering into a written agreement which evidences an intention to live separate and apart with no chance of reconciliation; or
  1. by actually living separate and apart for more than one year with a least one party intending the interdependent relationship to cease.

Spousal Support Claims Under the Family Law Act

For those individuals seeking to bring a spousal or partner support claim under the Family Law Act, when the “clock stops” - so to speak – is unfortunately far less clear. The Alberta Family Law Act does not explicitly stipulate specific deadlines when seeking relief under the Act (which contrasts with the Family Law Property Act which does stipulate specific deadlines). Consequently, the default presumption is that the limitation periods as set out in the Limitations Act would apply.

However, the Court of Queen’s Bench has recently made several significant rulings which address this issue. For example, Blaney v Murphy, 2020 ABQB 196 has raised considerations as to how the Limitations Act interplays with the Family Law Act (and specifically claims for support), rendering application of the Limitations Act to support claims far more complex and frankly, convoluted. In his decision, the Honourable Mr. Justice Feth contemplates a variety of reasons why a claim for partner support under the Family Law Act, would not result in the triggering of the Limitations Act and therefore the imposition of a deadline by which a party must bring their claim.

More recent case law from the Court of Queen’s Bench, provides an even more definitive position. In Thalheimer v Chalut, 2021 ABQB 19, the Honourable Mr. Justice Graesser concludes that, “the Limitations Act does not apply to claims for support by separated adult independent partners in Alberta”, while also leaving open potential defenses to delayed claims for partner support.

Whether Justice Graesser’s decision in Thalheimer v Chalut will be upheld on appeal is yet to be seen. Regardless, while there may be no limitation period to bring a claim for support under the Family Law Act (should the most recent case law stand), delay in bringing an application may still prejudice the claimant in certain instances.

Missing the Deadline & Stopping the Clock

While knowing the deadline for filing your material is the first step, making sure you meet the deadline is undoubtedly the next step. Parties should play close attention to when their deadline occurs, especially if they are actively choosing not to file a claim, hoping the matter will resolve without litigation. There is arguably nothing worse, than knowing when the deadline is, and then missing it because you forget to file.

In other instances, individuals know when the deadline for filing is, but miss it because they believe that deadline was suspended or extended. While it is possible to extend/suspend the deadline for filing your claim, it is a risky move. Different grounds for claiming a deadline is suspended/extended, such as ‘standstill agreements’ or promissory estoppel, have stringent tests which can be hard to prove in Court. If you are not a 100% sure that you have a valid ‘standstill agreement’ or whether the other party is estopped, it is likely better to file your substantive claim, or at least a claim to preserve the limitation period.

Summary – What You Need to Know About Limitation Periods

While the intricacies of limitations periods can be complex and quite fact-specific, individuals should remember the following:

  1. You may be prevented from bringing a family law claim if you wait too long;

  2. You should immediately take steps to determine what limitation period or deadline applies when you realize you may have a claim for relief;

  3. It is better to file to preserve your claim (and then choose not to pursue it), rather than forgo the ability to pursue the claim by not filing on time; and

  4. Delay in bringing your claim may impact the relief you obtain, even when you may not be barred from filing your materials.

If you have any questions or concerns about limitation periods and how they may impact the relief you wish to seek, or any other family law issues, you can set up a consultation by calling our office at 587.440.3070 or by using the Contact Form on our website. Our office is set up to work virtually and we can assist you with any family or divorce issues you may have during the COVID-19 pandemic.

The above information regarding limitation periods as detailed above does not constitute legal advice. EBL Family Law is not liable for any reliance on the above information.