Time Limits After Separation in BC: Which Family Law Claims Have a Deadline?

Separation raises many questions at once, and one of the most important is timing. Some claims can wait. Others can be lost if you do not start them soon enough. It helps to know which is which before you decide what to do first.

This article gives an overview of the deadlines that can start running after a separation in British Columbia. It covers the main rule, the exceptions, and why the date you separated can matter. It is general information, and your own situation may turn on details a lawyer can confirm.

This article covers the law of British Columbia.

The general rule and the 2-year rule

Under the Family Law Act, a family law proceeding may generally be started at any time. That is the starting point, and it is why many matters have no deadline at all.

The main exception is a group of financial claims. Claims to divide property or debt (Part 5), to divide pensions (Part 6), and for spousal support (Part 7) must be started within 2 years.

When the 2 years starts depends on your relationship. For married spouses, it runs from the divorce judgment (or a nullity order). For unmarried spouses in a marriage-like relationship, it runs from the date they separated.

Married and unmarried spouses: who counts

A person is a spouse under the Family Law Act if they are married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. A spouse also includes a former spouse.

For property division, unmarried couples need to have lived together in a marriage-like relationship for at least 2 years. There is a narrower rule for some other matters. Outside property and pension division, an unmarried person who lived in a marriage-like relationship and has a child with the other person is a spouse even without 2 years together. So the child rule can apply to spousal support but not to property or debt division.

Exceptions and special cases

• A married person claiming spousal support under the federal Divorce Act has no time limit, while under the Family Law Act the 2-year limit applies.
• A spouse may apply to set aside a property or spousal support agreement within 2 years after first discovering, or reasonably ought to have discovered, the grounds.
• The 2-year limit does not apply to spousal support reviews under sections 168 or 169 of the Family Law Act.
• The time stops running while the parties are in family dispute resolution or a prescribed process.
• Child support and parenting claims are not subject to the 2-year limit, and each parent and guardian has a duty to provide support for a child.

Which law applies to you can change the deadline. The Family Law Act covers married and unmarried spouses, while the Divorce Act applies only to married spouses. Because the rules interact, it is worth getting advice early rather than assuming you have time.

Why your separation date matters

For unmarried spouses, the separation date is the date the 2 years starts. Even for married spouses, the date affects other things, such as the one-year separation needed before a divorce can be granted. So you may need to show when you separated.

You can be separated while still living in the same home. The Family Law Act says spouses may be separated despite living in the same residence, and the court may consider evidence such as one spouse telling the other they intend to separate permanently. BC government guidance also says there is no such thing as a legal separation, and that a clear intention of permanent separation must be communicated and acted upon.

Reconciliation can move the date, but the rules are different depending on the issue. For property division, spouses are not considered to have separated if, within one year after separation, they live together again with the primary purpose of reconciling and do so for periods totalling at least 90 days. If the total is less than 90 days, or the main purpose was not to reconcile, the original separation date stands for property purposes.

The Divorce Act has its own, different 90-day rule. A period of separation is not interrupted by resumed cohabitation totalling no more than ninety days. Do not assume the two rules work the same way.

Where property claims go

The Provincial Court has jurisdiction in matters under the Family Law Act, but not property division, except for companion animals. Property division is therefore in the Supreme Court. A spouse may apply for property orders at any time before a final agreement or final order on property division is made.

What to do next

• Write down the date you separated and how you made your intention clear, including any messages or notes.
• Note whether you were married, and if not, how long you lived together in a marriage-like relationship.
• Record any period of living together again after separation, and what the purpose was.
• Find out the date of any divorce judgment, since for married spouses the 2 years runs from it.
• Gather any signed agreements, and note when you first learned of anything that may be wrong with them.
• Speak to a lawyer early about which deadlines may apply to you, especially before the 2 years runs out.

Frequently asked questions