Have the Time Limits Expired for You to Make Your Family Law Claims in Your Separation or Divorce?

Have the Time Limits Expired for You to Make Your Family Law Claims in Your Separation or Divorce?

Hi, my name is Thomas O’Malley.  I’m an experienced family lawyer in Durham Region and the GTA.

Do you realize that you could be out of time in making your family law claim in your separation or divorce?

That’s not a great situation for anyone to find out in their family law case!

This is the story of what happened to Fleming and Elizabeth.  They were married for 7 years when they separated.  

One week before the wedding, they signed the marriage contract based on a template for prenuptial agreements that the wife had found on the internet.

Although the contract states that each party “has retained their own lawyer and has received independent legal advice”, neither the husband nor the wife retained or consulted a lawyer.

Similarly, the contract states that the parties exchanged financial disclosure, but no formal exchange took place.   The agreement contains provisions setting out the parties’ intent to keep their assets separate, to bar any property claims following separation, and to waive any future rights to spousal support.   

One thing you can learn from the situation of Fleming and Elizabeth is…

But before I explain what you can learn, let me clearly point out that you should always find out and know the time limits for your various family law claims in your case.

You definitely need to get the advice of an experienced Ontario family lawyer to know and understand your family law claims in your situation

For example, when you are a common-law spouse and you are making a claim based on against your spouse’s property based on the argument that you contributed to the acquisition and maintenance of the property, both financially and otherwise, this type of claim (called an unjust enrichment claim) has a limitation period of 10 years.

You need to make a child support claim after you and your spouse have separated.  You can usually go back only three years to get child support for previous years.

In the case of Fleming and Elizabeth, the husband, Fleming, made claims in family court for property (called equalization of net family properties) and spousal support.  The wife, Elizabeth, claimed that the marriage contract was the answer to the claims, that is, that the husband was not allowed to make these claims as a result of the terms of the marriage contract.

The husband also argued that the marriage contract should be set aside.  The wife argued that the husband was out of time to try to set aside the marriage contract.

The Ontario Court of Appeal found that there was no time limit for a claim to set aside a marriage contract.

The court also carefully explained that there is no time limit for a spousal support claim in Ontario.

However, you must realize that there is an important time limit for making property claims when you are married.  You must make a property claim when you were married within two years after your divorce or six years after you are separated, whichever comes first.

The lesson that you can learn from the case of Fleming and Elizabeth is to know your time limits and make sure you get the advice of an experienced family lawyer when dealing with a marriage contract or family law claims after your marriage or common-law relationship has ended.

If you have any questions about your separation, divorce or family law case and you would like our help, there’s a few ways to contact our office. 

You can leave a message on my Facebook law office page, visit my website at www.canadiandivorcelegaladvice.com, or call me directly at 905-434-8837. 

We would be happy to speak to you.

Oh, by the way, did you know you can protect your family law rights and get essential information on settling your family law issues with your former spouse with the daily indispensable family law advice and tips at my FREE Facebook group? 

Click here to find out more: Durham Region Separation and Divorce Legal Support Group  

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