Vancouver Family Law Limitation Periods are critical because if you make your claim too late you will be denied critical financial relief. In today’s blog young gun family lawyer, Fraser MacLean, and paralegal Carly Crawford, help you stay safe by explaining how Vancouver Family Law Limitation Periods work. Click here to meet with us so your claims are not barred!
“Limitation Periods in Family Law. Are You Out of Time?” 1 877 602 9900
Once we start feeling like our clock is ticking too fast, we typically hear someone say, “Don’t worry, you have all the time in the world”, as much as that line has merit in most areas of our daily life, you may be surprised to learn that in family law that’s not necessarily the case.
Dependent on your marital status, your time limit to start a claim against your spouse may be out of time. However, for us to understand time limits, we need to recognize how being “married” and being in a “marriage-like relationship” can shake that ticking clock.
Under Section 198(2) of the Family Law Act, a spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than two years after:
(a)in the case of spouses who were married, the date
(i)a judgment granting a divorce of the spouses is made, or
(ii)an order is made declaring the marriage of the spouses to be a nullity, or
(b)in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
Vancouver Family Law Limitation Periods
1 877 602 9900
In simpler terms, if you are married, the two-year limitation period starts from the date of divorce. In circumstances where you and your partner are in a “marriage-like relationship” or “common law”, the two-year limitation period starts from the date of separation. This is where it becomes a little tricky because some spouses may consider their “separation date” to be different periods.
The court will typically examine when the relationship broke down and when the spouses began to live apart from one another, however, “being together” and “living under the same roof” does not automatically mean the same thing. In many cases, you can be considered separated while still living under the same roof as long as one spouse ends the relationship and acts accordingly.
Section 3(4) of the Family Law Act explains that spouses may be separated despite continuing to live in the same residence. The court may consider as evidence the following:
- communication, by one spouse to the other spouse, of an intention to separate permanently, and
- an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.
Rising star Fraser MacLean, one of our skilled junior lawyers at MacLean Law has successfully argued at all levels of court in British Columbia. Less than one year after being called to the bar, Mr. MacLean successfully won at the BC Court of Appeal. Mr. MacLean’s knowledge of understanding the importance of transparency and relationship timelines has proved yet again to be a success. In Bhimani v Beninteso 2019 BCSC 2074, Mr. MacLean was able to have a claim dismissed due to evidence exposing the actual date of separation between the parties.
In this case, the Claimant, Mr. Bhimani, filed his Notice of Family Claim on July 25, 2018, claiming a division of family property. Ms. Beninteso, the Respondent, applied to the court to have the Claimant’s claim dismissed due to him missing the limitation because of the separation date. The main argument that was used by Mr. MacLean was that the Claimant filed his claim more than two years after the separation. Therefore, the Claimant’s “hourglass” ran out of time. The Honourable Mr. Justice Myers (Justice Myers) followed section 198 of the Family Law Act and examined the evidence before him.
Vancouver Family Law Limitation Periods Lawyers
On or about June 4th and 5th of 2016, the Respondent suspected that the Claimant was committing adultery and using narcotics. Only a couple days later, the Respondent clearly told the Claimant that the relationship is over, asked him to retrieve his belongings, and removed the Claimant from her health and benefits converge. The parties stopped sleeping in the same bed, and the Respondent was removed from the insurance policy on the Claimant’s vehicle on June 15, 2016.
Even though the parties did have contact with one another, and the Respondent remained to have a positive relationship with the Claimant family for their daughter, the evidence was apparent that the parties had separated before the Claimant moved out of the Burnaby condo and began living at his mother’s residence. As such, Justice Myers concluded that the claim is dismissed because the separation occurred on June 7, 2016, when the Respondent told the Claimant that the relationship was over.
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At MacLean Law, we understand that when a relationship is breaking down that emotions are high for each individual involved. We know that relationships come with their ups and downs. The fighting, the rekindling, the plain old, changing the lock, we get it. But most importantly, we understand the law. Whether you have a question for Mr. MacLean or another lawyer, our priority is you. We may not be able to turn back the clock, but we can help you with your future.
