- Under the Family Law Act, a spousal support proceeding must generally be started within 2 years of divorce (if married) or of separation (if in a marriage-like relationship).
- The Divorce Act has no set time limit for married or formerly married spouses, but delay can still hurt a claim.
- The 2-year clock is paused while spouses are in family dispute resolution with a professional or in a prescribed process.
If you separated some time ago and never sorted out spousal support, you may worry that the door has closed. The answer depends on whether you were married, which law you are applying under, and what has happened since.
This article explains the time limits in British Columbia, the exceptions, and how delay can affect a claim even when no strict deadline applies.
This article covers the law of British Columbia.
The two-year rule under the Family Law Act
A spousal support proceeding under the Family Law Act must be started within 2 years after the date a judgment granting a divorce is made, or an order declaring the marriage a nullity, for married spouses. For spouses in a marriage-like relationship, it must be started within 2 years after the date of separation.
That means the clock starts at different points depending on your relationship. Separation can happen even while spouses live in the same home, and a court may treat a clear communication or action showing an intention to separate permanently as evidence of it.
| Your relationship | When the 2 years run from |
|---|---|
| Married | Date of the divorce judgment or nullity order |
| Marriage-like (unmarried) | Date of separation |
A spouse includes a former spouse, so you can claim after the relationship has ended. To qualify as an unmarried spouse, you generally need at least 2 years of marriage-like cohabitation, though for spousal support a couple with a child together can still qualify.
Married spouses and the Divorce Act
The Divorce Act applies only to married or formerly married spouses seeking a divorce-related order. Unmarried partners claim under the Family Law Act instead.
Section 15.2 of the Divorce Act contains no time limit for a married or formerly married spouse to apply for spousal support. Delay is considered as a factor in the merits and in retroactive claims, not as an automatic bar. The Family Law Act two-year limit applies to claims under that Act.
Which Act fits your situation, and how the two interact, can be complicated. A lawyer can confirm your position before you rely on the absence of a deadline.
Exceptions: pauses, reviews and arrears
- The 2-year limit is paused while the spouses are in family dispute resolution with a professional or in a prescribed process.
- The limits do not apply to reviews of spousal support under sections 168 or 169 of the Family Law Act.
- The Limitation Act's basic period is 2 years after a claim is discovered, but it does not apply to claims for arrears of spousal support under a judgment or an agreement filed under the Family Law Act.
If you already have an order or filed agreement and the other person fell behind, the arrears are not barred by that basic two-year period.
What delay can do to your claim
Even where no deadline has passed, waiting can weaken a case. Support is decided by looking at each spouse's condition, means, needs and other circumstances, including the length of cohabitation and the functions each performed. Old records are harder to find, and years of self-supporting can change the picture of need.
An order may cover periods before the application date. Still, a longer gap generally makes a retroactive request harder, since delay is weighed on the merits.
There is no minimum length of marriage for spousal support, and the length of cohabitation is one factor in amount and duration. Fault is generally not considered when deciding support, so who ended the relationship is generally not part of the question of entitlement.
What to do next
- Work out your date of separation, and your divorce date if you were married.
- Note whether you were married or in a marriage-like relationship, and whether you had a child together.
- Record any family dispute resolution, such as mediation, including dates.
- Gather tax returns, proof of cohabitation and any earlier agreements or orders.
- See a lawyer promptly, because deadlines can turn on exact dates.
Frequently asked questions
Is it too late if I separated more than two years ago?
It depends on whether you were married. For an unmarried couple, the 2 years run from separation, so a claim started more than two years after separation is generally out of time unless a pause applies. For married spouses the Family Law Act period runs from the divorce judgment, not separation, and the Divorce Act sets no time limit.
Does mediation stop the clock?
The 2-year limit is paused while the spouses are in family dispute resolution with a professional or in a prescribed process. Keep records of when it started and ended.
Can I still claim unpaid support under an existing order?
Claims for arrears of spousal support under a judgment, or an agreement filed in court under the Family Law Act, are not covered by the Limitation Act.
Does it matter who ended the relationship?
Generally no. A court must not consider misconduct, except conduct that arbitrarily or unreasonably causes, continues or worsens the need for support or affects ability to pay.
Sources
- Family Law Act, SBC 2011, c 25, s. 3(1) — bclaws.gov.bc.ca
- Divorce Act, RSC 1985, c 3 (2nd Supp), s. 2(1) — Justice Laws (federal)
- Family Law Act, s. 162 — bclaws.gov.bc.ca
- Family Law Act, s. 198(2) — bclaws.gov.bc.ca
- Limitation Act, SBC 2012, c 13, s. 6(1) — bclaws.gov.bc.ca
- Divorce Act, s. 15.2 — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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