What are the time limitations on applying for spousal support or a division of family property?

UPDATED (from April 2015): Women who leave abusive relationships are often reluctant to pursue their financial rights. There are many reasons for this. Some women don’t know they may have a right to share in the family property or to receive support from their spouse. Others feel overwhelmed with the separation process, and sorting out custody, access and possibly child support is all they can manage. Still others are too afraid of their former partner to make any financial claims against them – often because he has told them he will give them nothing as a threat to try to keep them in the marriage.

These are all good reasons, and women who feel strongly they do not want to claim spousal support or seek a division of family property need to be supported in those decisions.

However, it is also important for women to understand what their rights are and what the implications of delaying a financial claim might be.

This FAQ examines time limitations for applying for spousal support or a division of property for women who have been married to their partner as well as women who have lived in a common-law relationship with their partner.

You can find more information about spousal support and division of property in the National Association of Women and the Law’s Women’s Guide to Money, Relationships and the Law in Ontario at http://nawl.ca/en/money

Division of property:

Married spouses have a statutory right to share equally in all property acquired during the years of marriage and to share equally in the full value of the matrimonial home regardless of who paid for it and whose name it is registered in. This is because the law views marriage as a partnership with both partners making equally important, if different, contributions.

A woman must start a claim for equalization of family property within six years of the date of separation or 2 years from the date of divorce.

A couple is considered to be separated as of the date on which there is no reasonable prospect they will resume cohabitation. The court considers a number of factors in determining this date, if the couple cannot agree on when it is:

  • Physical separation, even if they remain in the same home
  • Withdrawal by one spouse from matrimonial obligations
  • While the absence of a sexual relationship is a factor, it is not on its own determinative
  • Changes in how the couple communicates with one another and with others
  • Separate meal patterns
  • Separation of child rearing responsibilities and time
  • Separation of social activities and household responsibilities

The court can grant an extension to these limitations if it feels:

  1. There are appropriate grounds for relief
  2. The relief was previously unavailable because the delay was incurred in good faith AND
  3. No one will suffer substantial prejudice if an extension is granted

While it is possible a court would consider the trauma of abuse to satisfy the test set out above, it is not certain, and women should be encouraged, whenever possible, to start their claim for equalization of family property within the limitation period.

Common-law spouses have no statutory right to an equalization of family property. However, a woman could make a claim in family court for a share of property if she can show she contributed to its value in some way. Such a claim must be started within two years of the date of separation.

Spousal support:

Whether a woman was married to her partner or lived with her partner for at least three years, or a short period of time if she and her partner have had a child together, she may be eligible for spousal support. There is no limitation period within which she must apply. However, her case will be stronger the sooner her claim is started for a few reasons. Because one of the goals of spousal support is to assist both spouses in becoming as financially independent as possible from the other and to do so as quickly as possible, if a woman waits a number of years before seeking spousal support, the court may take the position that she is able to support herself and so should not receive support. As well, when a claim for support is delayed, even if the woman is successful, she may only receive support from the date her claim is begun or the date of the order rather than receiving retroactive support to the date of separation.

The Spousal Support Advisory Guidelines suggest that an appropriate duration for the payment of spousal support is .5 to 1 year of support for each year of marriage. Where the marriage is at least 5 years long and the years of marriage added to the age of the person applying for support totals at least 65, support is likely to be payable indefinitely, but it should be noted that indefinitely does not mean forever.

Less clear is whether a spouse has a right to increased support if her former spouse’s income increased after separation. This is most likely to be the case if the increase to the spouse’s income comes shortly after separation and if the spouse receiving the support contributed in some way to the other spouse’s career and salary advancement to her own financial detriment.

There is no time limitation on when one spouse can make a claim for a division of the other spouse’s Canada Pension Plan credits.

A spouse in a common-law relationship must make a claim for a division of the other spouse’s CPP credits within 4 years of the date of separation.

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