Top 5 Family Law Limitation Periods in Alberta are key dates Calgary and Alberta family law litigants have to be aware of! Missing any of these limitation periods is catastrophic. Read this blog very carefully and do not procrastinate in your family law case.
Lawsuits have fixed time periods in which a Court action must be started or the person loses the right to make a claim. These are called “limitation periods”. The Limitations Act of Alberta sets out a general 2-year limitation period for commencing most (but not all) civil claims in Alberta. Peter Graburn, senior Calgary family lawyer explains some key dates you must be aware of to prevent your family law claim being denied for inappropriate delay.
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Family lawsuits are just like other lawsuits and while there may not be as many limitation periods in family law matters as in other areas of the law, there are at least 5 main limitation periods separating spouses (both married and common-law) in Alberta you need to watch out for:
1. Top 5 Alberta Family Law Limitation Periods -Financial Support – generally there are no limitation periods for starting a claim for child support (as long as the child is still entitled to support) or spousal support (although the longer the delay, the harder to claim a need for support) on a going-forward basis. Where time periods come into play with child or spousal support, is when a spouse is making a claim for retroactive (looking-back) support. The Supreme Court of Canada in the case of D.B.S. (2006 SCC 37) set out a basic 3-year time limit for a retroactive child support claim, unless the other party has committed some form of blameworthy conduct (ie. not providing financial disclosure upon request) that may entitle the claiming parent to go back further than the 3-year limit;
2. Top 5 Alberta Family Law Limitation Periods -Unjust Enrichment – in a previous post on unjust enrichment and joint family ventures , I explained how non-married couples in Alberta (called Adult Interdependent Partners, or AIPs) must currently commence a claim under the legal concepts of unjust enrichment, constructive trust, and joint family venture to establish their interest in their former partner’s property (although this may change under the soon-to-be-passed Family Property Act).
Alberta Courts have generally accepted that the standard 2-year (starting on separation) limitation period set out in the Limitations Act applies to unjust enrichment claims. However, in the case of Johansen v. Fevang (2009 ABQB 573), Alberta Court of Queen’s Bench Justice Ouellette noted: “there is very little, if any, case law which specifically sets out the point at which a limitation period begins to run in a constructive trust action”, finding that the limitation period starts to run one (1) year after the AIP’s separation (meaning 3 years after actual separation);
3. Top 5 Alberta Family Law Limitation Periods -Matrimonial Property – where limitation periods in family law in Alberta really start to bite is in the division of matrimonial property by separating married couples. The Matrimonial Property Act of Alberta (MPA) provides that (unless otherwise agreed) married couples share their common property equally upon separation. However, section 6 of the MPA states that an application for division of matrimonial property must be commenced 2 years from the date of separation or the granting of the divorce (depending on the type of property).
Accordingly, if the matrimonial property (ie. the matrimonial home) is not registered in both names, spouses have only 2 years from separation or divorce to commence a claim for the division of property held in the name of the other former spouse. Unlike other provinces (ie. Ontario), there is no legislative provision in Alberta to grant an extension of this time limitation;
4. Top 5 Alberta Family Law Limitation Periods- CPP – The federal Canada Pension Plan Act (CPPA) allows separating couples (both married and common-law) to share CPP credits accumulated during the relationship. There is no limitation period for former married spouses to apply for a division of their CPP credits upon a divorce being granted, but former common-law partners must have been separated for 1 year and have only 3 years from separation to apply for a division of their CPP credits;
5. Top 5 Alberta Family Law Limitation Periods Bankruptcy – Finally, under the federal Bankruptcy and Insolvency Act (BIA), a spouse cannot make an equalization or constructive trust claim against the exempt property (ie. pensions, RRSPs, etc.) of their separated spouse once that another spouse has been discharged from bankruptcy if the other spouse made the assignment into bankruptcy after separation.
Accordingly, it is important to consider taking steps to secure your interests in the separated spouse’s property (both subject to and exempt from bankruptcy) immediately upon the separated spouse commencing bankruptcy proceedings.
Top 5 Alberta Family Law Limitation Periods 403 444 5503
Limitation periods in family law can be confusing and frustrating. While the overriding principle in family law is to determine what is ‘just and fair’ for separating spouses (and what is “in the best interest” of their children), limitation periods restrict and sometimes completely prevent the ability of a separating spouse from bringing their legitimate claims for financial support and division of property against their former partner. Don’t delay finding out what your family law rights are. Here is some more free information on family law.
Don’t Run Afoul Of The Top 5 Alberta Family Law Limitation Periods – Call us now at 403 444 5503
Calgary Family Law Limitation Period Lawyers explain to their clients both their rights and obligations regarding their former partner and their children and the time periods for exercising those rights and obligations and assist their clients to take timely action to commence and pursue those claims within the relevant time limitations.
By Peter Graburn senior Calgary and Calgary office managing associate at MacLean Law.