Family Law Limitation Periods for Married Couples

By Ashley Hizo

Upon the breakdown of a marriage, spouses are legally entitled to an equalization of net family property which is the equal share of the profits accumulated throughout a marriage. This entitlement however, is subject to several important limitation periods that may defeat or extinguish one’s property right.

A limitation period is the maximum amount of time that a spouse has to make a claim under a provincial or federal law. In the family law context, the Ontario Family Law Act (FLA) is the governing legislation that sets out the relevant limitation period.

Pursuant to this governing legislation, married spouses are required to make a claim for the equalization of net family property within the earliest of:

• 6 months after the first spouse’s death;
• 2 years after a divorce has been ordered; or
• 6 years from the date of separation.^[1]

Failing to take action within the prescribed limitation period can have significant consequences and may prevent a claim for equalization. It is important to note that there is no limitation period to bring a claim for either spousal or child support as long as entitlement is met under the appropriate legislation.

While one should be cognizant of making an equalization claim before the limitation period is up, the Court does have some discretion whether to extend the limitation period if a claimant can establish that:

1. There are apparent grounds for relief;
2. Relief is unavailable because of delay that has been incurred in good faith; and
3. No person will suffer substantial prejudice by reason of the delay.^[2]

While an extension of time to file may be granted if the above factors are successfully established, this is a case-by-case determination that is ultimately left to the Court’s discretion. To avoid the risk of one’s equalization claim being statute barred, it is well advised to bring an equalization claim within the appropriate limitation period.

For any inquiries or legal assistance regarding a limitation period or other family law related matter, we encourage you to reach out to one of our experienced family law lawyers at SorbaraLaw.