How long can you delay in bringing foward a family law claim?

In Ontario, for most civil claims, you have two years after discovering the cause of action (or 2 years from the date when you should have discovered the cause of action) in which to initiate court proceedings.

In family law, you can make a claim for the equalization of net family property up to 2 years after the divorce is granted, and up to 6 years following the date of separation. These periods can be extended in certain situations, but not where you were aware of your claim, and had no good reason to justify the delay.

Although common law spouses aren’t entitled to an equalization, they can make a constructive trust claim against the property of their partner. Following the general limitation period set out in the Ontario Limitations Act, 2002, the Court of Appeal has confirmed that there is a 2 year limitation period for basic constructive trust claims in common law situations. Where the trust claim relates to real property- keeping in mind that real property claims enjoy a longer limitation period of 10 years under the Real Property Limitations Act- there is a 10 year limitation period where the constructive trust claim relates to the recovery of land which has been disposed of.

There is no limitation period to obtain support under the Family Law Act. This doesn’t mean you should delay filing a claim for spousal support if you believe you are entitled to it, because a court might be reluctant to award retroactive support when you haven’t pursued your claim in a timely way.

The consequence of missing a limitation period is that your claim will become statute-barred. For this reason, it’s important to speak with a legal professional as soon as possible after separation. Delay can prejudice your claim, or deny it altogether.

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