Out of Time? Limitation Periods in the Family Law Context.

“There is no limitation period for bringing the proceeding for a declaration setting aside a marriage contract, whether as a stand-alone matter or if the proceeding also claims other family law relief. The other relief remains subject to the applicable limitation periods… In this case, those limitation periods are six years for the husband’s equalization claim, and there is no limitation period for his spousal support claim.”[1]

 A recent Court of Appeal decision, Kyle v Atwill, confirmed that there is no limitation period for asking to set aside a marriage contract (popularly referred to as a “prenup”). Limitation periods are important in all areas of the law as they determine whether a party is within the applicable limitation period or out-of-time in bringing, among other things, lawsuits, actions, applications, claims or requests.  

In Ontario, two statutes govern limitations issues in the family law context: the Limitations Act and the Family Law Act. For example, according to the Family Law Act, there are three limitations periods for applications for equalization of net family property. In particular, such applications shall not be brought after the earliest of: (a) 2 years after the day the marriage is terminated by divorce or judgment of nullity; (b) 6 years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) 6 months after the first spouse’s death.[2] While these three limitation periods exist with respect to the parties’ property issues, there are no limitation periods under the Family Law Act for applications for spousal support. Instead, the Limitations Act states that there is no limitation period for bringing a proceeding to obtain support or to enforce a contract providing for support under the Family Law Act.[3] However, given that the Family Law Act is silent as to the limitation period that applies when a party is asking to set aside a marriage contract, the Court was tasked with determining which provisions of the Limitations Act, if any, apply to these circumstances.

Applying the Limitations Act, the Court determined that an application to set aside the marriage contract is a proceeding for a declaration or declaratory relief. The Court confirmed that while there is no limitation period that applies to the proceeding for a declaration or declaratory relief, the relevant limitation periods continue to apply to the substantive or consequential remedy that a party seeks against the other party. To illustrate the point, the Court stated at paragraphs 54-55:

[54] Applying the principle to this case, where the husband seeks a declaration that would remove a significant obstacle to his claims for equalization and for spousal support, that declaration is subject to no limitation period… The limitations governing the consequential relief he seeks, namely equalization and support, are the periods applicable to those forms of relief: six years from the date of separation for equalization, and no limitation period for support.

[55] Conversely, had the husband brought his equalization claim seven years after the date of separation with no reasonable possibility of reconciliation, and therefore out of time, the fact that he would be able to obtain a declaration setting aside the marriage contract would not mean that his equalization claim could proceed. That claim would remain time-barred, subject to the power of the court to extend the time under s. 2(8).

The Court’s analysis of the limitation issue is significant for the family law context. The decision appreciates both the philosophy and interplay of the Family Law Act and the Limitations Act. Given the importance of limitation periods and their impact, parties must stay mindful of the limitation periods that apply in their family law matters.

[1] Kyle v Atwill, 2020 ONCA 476 at para 57 [Kyle v Atwill].

[2] The Family Law Act, RSO 1990, c F 3, s 7(3). See also the Limitations Act, 2002, SO 2002, c 24, Sched B, s 19(1)(a).

[3] The Limitations Act, s. 16(1)(c). 

Toronto boutique family law firm dedicated to resolving your family law case justly and effectively, restoring your balance and dignity. Maleki Barristers is dedicated to a client-centred approach and is ready to help during this unprecedented time.