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Difference between revisions of "Assets of Couples (3:IX)"
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→e) Limitation Period
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A former spouse is considered a “spouse” within the meaning of the ''FRA'' (s 1) and ''FLA'' (s 3) for the purpose of proceedings to enforce or vary an existing order. However, where an entirely new order is sought, the parties cease to be “spouses” within the meaning of the Act after 2 years has passed since the order granting the divorce was made. This distinction has engendered a debate as to whether there is a limitation period for the redistribution of property “between spouses” under the FRA. See [http://canlii.ca/t/1crnw ''Staires v Staires'' (1991), 34 R.F.L. (3d) 376 (BCSC)] and [http://canlii.ca/t/1dffq ''Tatlock v Tatlock'' (1992), 71 BCLR (2d) 194 (SC)]. The Supreme Court of Canada partially addressed the issue in [http://canlii.ca/t/1x6gx ''Stein v Stein'', [2008<nowiki>]</nowiki> 2 SCR 263, 2008 SCC 35], para. 12: “...the [''Family Relations Act''] does not place any temporal limits on the division of assets. Nor does it state that once assets have been subject to an initial division, a reapportionment cannot occur at some point in the future”. | A former spouse is considered a “spouse” within the meaning of the ''FRA'' (s 1) and ''FLA'' (s 3) for the purpose of proceedings to enforce or vary an existing order. However, where an entirely new order is sought, the parties cease to be “spouses” within the meaning of the Act after 2 years has passed since the order granting the divorce was made. This distinction has engendered a debate as to whether there is a limitation period for the redistribution of property “between spouses” under the FRA. See [http://canlii.ca/t/1crnw ''Staires v Staires'' (1991), 34 R.F.L. (3d) 376 (BCSC)] and [http://canlii.ca/t/1dffq ''Tatlock v Tatlock'' (1992), 71 BCLR (2d) 194 (SC)]. The Supreme Court of Canada partially addressed the issue in [http://canlii.ca/t/1x6gx ''Stein v Stein'', [2008<nowiki>]</nowiki> 2 SCR 263, 2008 SCC 35], para. 12: “...the [''Family Relations Act''] does not place any temporal limits on the division of assets. Nor does it state that once assets have been subject to an initial division, a reapportionment cannot occur at some point in the future”. | ||
Under s 198(3), a spouse may make an application to set aside an order or agreement for property division no later than 2 years after the spouse first discovered, or reasonably ought to have discovered, the grounds for making the application. | |||
'''The ''FLA'' allows common law spouses only two years to apply for property division and spousal support after the separation date (s 198). The limitation period may be suspended for both married and unmarried spouses if they were engaged in family dispute resolution with a family dispute resolution professional.''' | '''The ''FLA'' allows common law spouses only two years to apply for property division and spousal support after the separation date (s 198). The limitation period may be suspended for both married and unmarried spouses if they were engaged in family dispute resolution with a family dispute resolution professional.''' | ||
Under the [http://canlii.ca/t/8qx3 ''Limitation Act''], there is no limitation date for claims on arrears of spousal and child support payments. Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law. | Under the [http://canlii.ca/t/8qx3 ''Limitation Act''], there is no limitation date for claims on arrears of spousal and child support payments. Once a distribution scheme for family property is set, either by the Court or by agreement, it is always enforceable subject to the relevant case law. | ||
