If you and your spouse are married and you chose to get divorced before dealing with the issues of spousal support or property and debt division, you will each have two years from the date of the divorce to seek orders regarding the division of family property and debts or spousal support.
If you and your spouse were not married and you lived together for less than two years, but you have a child together, you are considered to be in a “common law relationship,” and you have two years from the date of separation to seek spousal support. Because you lived with your partner for less than two years, neither of you are entitled to a division of property or debts. There are no limitation periods or deadlines to seek orders regarding your child (or children) or child support.
If you and your spouse were in a common law relationship because you lived together for more than two years (whether or not you have a child together), then you each have two years after the date of separation to seek orders regarding the division of family property and debts or spousal support.
This two-year deadline is referred to as a “limitation period,” and it is outlined in s. 198 of the British Columbia Family Law Act.
In summary, s. 198 states that:
A spouse may start a proceeding for an order
(a) to divide property or family debt;
(b) to divide a pension; or
(c) for spousal support,
no later than 2 years after
(a) a judgment granting a divorce is made (in the case of spouses who were married);
(b) an order is made declaring the marriage of the spouses to be a nullity (in the case of an annulment); or
(c) the date the spouses separated (in the case of spouses who were living in a common law relationship).
However, a spouse may make an application for an order to set aside or replace a separation agreement respecting property, debts, or spousal support no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application.
For example, say your limitations date is January 1, 2020 and you think that everything has been settled in a final order or separation agreement, but then you find out on February 1, 2023 that your partner had thousands of dollars’ worth of hidden assets that you would have been entitled to. Section 198(3) says that you can make an application to set aside or replace your order or agreement regarding property and debt division or spousal support no later that 2 years after you “first discovered, or reasonably ought to have discovered, the grounds for making the application.”
Section 198(5) says that the limitations period is suspended during any period in which you and your spouse are engaged in family dispute resolution with a family dispute resolution professional or a prescribed process (for example, mediation), but the best way to ensure that your limitations period does not expire is to file a Notice of Family Claim prior to your deadline.
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