Is There a Time Limit to Claim Spousal Support in Ontario?

If you lived with a partner without marrying and separated years ago, you may be asking whether you have missed your chance to claim spousal support. You may have seen a specific deadline mentioned online and wondered whether it ends your claim.

This article explains who can claim in Ontario and how delay can affect a claim. It does not give a deadline, because how a time limit applies depends on your facts and should be confirmed with a lawyer.

Which law applies to common-law partners

The federal Divorce Act applies to married couples who divorce. Provinces and territories set the support rules for unmarried common-law partners and for married couples who separate without divorcing. In Ontario, that is the Family Law Act.

So if you were never married, your claim sits under provincial law, and any time limit would come from provincial rules rather than from the Divorce Act.

Who can claim

Unmarried partners in Ontario can claim spousal support if they lived together as a couple for at least three years, or if they were in a relationship of some permanence of any length and had a child together. Married spouses can also claim.

A claimant must show at least one of the following:

• A relationship role that prevented building their own career.
• A need for support after separation while the other spouse can pay.
• A legal agreement providing for support on separation.

Factors affecting the amount include a large income difference, whether there are children and who cares for them, ages, roles in the relationship, mental and physical health, and ability to support oneself.

Why the time since separation still matters

Even where a claim is possible, years of silence can affect what you receive. For retroactive spousal support, courts consider the recipient's reason for delay, the payor's blameworthy conduct, the recipient's circumstances and hardship to the payor. Notice and delay carry more weight for spousal support, and the date of effective notice is especially important.

If past support is allowed, the SSAG are used to calculate it back to the commencement date using actual known incomes. A lump-sum spousal support payment is ordinarily neither deductible to the payor nor taxable to the recipient.

Whether a formal deadline bars all or part of your claim is a question about the law that applies and your dates of cohabitation and separation. Do not treat an online article, including this one, as the final word. A lawyer can confirm what applies to you.

Proving your claim and how to start

The SSAG do not decide entitlement. It must be proven or agreed before the formulas apply. The SSAG are not law, though judges often base decisions on them and courts and lawyers often apply them under provincial law too. For the SSAG, length of relationship runs from the start of cohabitation to the date of separation.

To start a court claim, prepare Form 8 and a Continuing Record, along with Form 13 (support only) or Form 13.1 (property and support) and Form 13A, the Certificate of Financial Disclosure. The respondent then has 30 calendar days to file an Answer if served in Canada or the US, or 60 calendar days elsewhere.

You can also settle support through a separation agreement, which must be understood, based on complete and honest financial disclosure, and not signed under pressure.

What to do next

• Write out your timeline: when you moved in together, any reconciliations, the separation date, and any child born.
• Collect any messages or letters where support was discussed or requested.
• Gather income records for both of you, as far as you can.
• Check for any agreement, such as a cohabitation agreement or separation agreement, that mentions support.
• Speak with a family lawyer soon, because delay can count against a claim for past support.

Frequently asked questions