Time Limit for Common-Law Property Claims in Ontario

If you and a former common-law partner have separated and you believe you are owed a share of a home, savings or other property, one question comes before all others: how long do you have to act? Waiting can quietly cost you the right to claim at all.

This article explains how deadlines work for married couples, how common-law claims differ, and why you should not guess at your date. How long you have for your own claim depends on the type of claim and your situation, so a lawyer can confirm it.

Start with what is clear: the married-spouse deadline

For married spouses, Ontario.ca sets the time limit for property claims at six years from the day of separation or two years from the day the divorce is final, whichever comes first. The Family Law Act also sets a period of six months after the first spouse's death.

These are the rules for the married-spouse property framework, where property acquired during the marriage is generally split equally and the spouse with the smaller share is owed an equalization payment. They are the benchmark people often hear about, but they were written with marriage in mind.

Why common-law claims are different

Common-law couples are not legally required to split property acquired while living together. Instead, a partner who contributed to property the other owns may have a right to part of it, and may need to go to court to recover that contribution.

Because a common-law claim is built on a different footing from a married spouse's equalization claim, you should not simply assume the married-spouse dates apply to you. The correct period and the date it starts depend on the kind of claim you are bringing and on the facts.

Different parts of a claim can have different clocks

The Court of Appeal has shown that a single legal proceeding can involve more than one time limit. In a case about setting aside a domestic contract, the majority held that the proceeding fell within s. 16(1)(a) of the Limitations Act, 2002, so the declaration had no limitation period, but consequential relief kept its own period, which for equalization was six years under FLA s. 7(3)(b). One judge agreed with the result but disagreed with the broad statement.

The lesson for you is practical. Even if one step in a dispute has no deadline, the money or property you actually want may still be time-limited. Do not rely on a general impression that you have plenty of time.

If a cohabitation or separation agreement exists, it may also matter. Spouses can vary the default rules by a domestic contract, and a court may set one aside in limited circumstances, such as non-disclosure of significant assets or debts.

Working out when the clock may have started

For married spouses, the starting point in the published rule is the day of separation. For common-law claims, the starting point depends on the kind of claim and the facts, so it is worth confirming with a lawyer. Rather than guessing, gather the dates that a lawyer will want.

• The date you and your partner began and stopped living together.
• The date one of you moved out, or told the other the relationship was over.
• When you made each payment or contribution to the property.
• When you first learned the property was registered only in your partner's name, or that you would not share in it.
• The date of any written agreement, and any later written discussion about property.

If more than a year or two has passed since you separated, it is especially important to get advice soon.

What to do next

Treat any deadline as already running. Starting a court case is not always the first step, and there are other ways to try to resolve things. Free family mediation is available in all Ontario family courts, offered at the courthouse on the day you are scheduled to be in court. Court-connected mediation can help with property division. Whether talking or mediating affects any deadline is worth confirming with a lawyer before you rely on negotiations.

• Write down your separation date and the dates of your main contributions.
• Collect financial records, titles, mortgage documents and any agreements.
• Book a consultation with a family lawyer to confirm the deadline for your type of claim.
• Visit a Family Law Information Centre at a family court for general information on separation and local resources.
• Do not wait until a negotiation fails before checking your time limit.

Frequently asked questions