You Snooze, You Lose

A recent Superior Court Decision reminds us that we do not have unlimited time to bring Family Law Claims and comply with Rules; we have an obligation to act when we are aware there is an issue.  Otherwise, we may be out of luck.

In the case of F.K. v. E.A., the parties completed a DIY  Marriage Contract from the internet.  Not unusually, the contract provided for a mutual waiver of spousal support and that there would be no division of property.  Also not unusually, there was a race to get the Contract signed before the wedding, which took place 6 days later, allegedly under threat that there would be no wedding if the Contract was not signed.

Neither party had legal advice at the time of the Contract.  Neither party provided financial disclosure of their significant assets and liabilities.

After the parties’ separation 7 years later, the Husband sought legal advice regarding the Contract.  Any deficiencies in the negotiation of the Contract, or his understanding of it, became known at that time.

While signing a Contract under duress, failing to exchange financial disclosure or understand the Contract may be considered reasons to set aside the Contract,  once the Husband knew there were issues with the Contract, the clock starting running.  Under the Limitations Act, the Husband had 2 years to bring his claim to set aside the Contract, which otherwise dispensed with his potential rights to spousal support and property division.  Unfortunately for the Husband, he waited 5 years after the separation.  His claim was dismissed.

Limitation Periods in Family Law

Other important limitation periods affecting family law matters include:

  • There is no time limit for spousal support claims;
  • Initial claims for child support cannot be made after the child ceases to be eligible for support (D.B.S. v. S.R.G.);  however, if there is already an Order in place, retroactive variations of child support may be brought even though the child may no longer be entitled to child support (Colucci v. Colucci);
  • 6 years from the date of separation to bring claims for a division of property, or 2 years from the date of divorce, whichever occurs earliest;
  • 10 years for claims against real property, including guarantees on mortgages, collateral mortgages,  and claims for an equitable interest in property (e.g. unjust enrichment of a titled spouse);
  • 2 years for equitable interests in other property;
  • 2 years for “on demand” loans, due date, or default;
  • 30 days to appeal Final Orders.

Other Risks for Failure to Participate

There are also serious consequences for those who choose not to respond to proceedings against them.  Please see our earlier article discussing these risks.

Before you take any legal action, or ignore another party’s claims, it is essential that you understand the potential consequences.  If you are considering bringing a claim, or defending one, contact us to discuss your options.

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