Toronto Family Law Lawyer Pei-Shing B. Wang
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Limitation period is a legal term referring to the maximum time after an event that legal proceedings may be commenced. If the matter in dispute is not brought before the courts within that time frame, it will be barred from the court.* In Ontario, the basic limitation period is two years.
However, family law is unique because of the interdependence of the spouses before the breakdown of their relationship. Hence, depending on the circumstances and the relief sought, the Family Law Act sets out different limitation periods.
Married couples in Ontario have six years from the date of separation to seek property rights, or two years from the date that the divorce was granted, whichever occurs first.^ If one of the spouses dies, the time is much shorter.
Interestingly, there is no limitation period for support claims in Ontario, regardless of whether the couple have been married or merely deemed spouses of each other (i.e., “common-law”).
For unmarried couples living together, it’s more difficult to ascertain what limitation periods, if any, are applicable to them because there is no legislative regime for property division at the breakdown of the relationship, especially when a claim of constructive trust is made.
The recent decision of McConnell v. Huxtable of the Ontario Superior Court may provide some guidance on this matter.# The facts are as follows. After a relationship of 13 years, the applicant sought relief from the court for division of the respondent’s assets, including his home. As there was no statutory provision for the claim, the applicant asked for compensation through, among other things, constructive trust.
The respondent denied that there had been cohabitation and claimed that the applicant was too late because the limitation period of two years for the applicant’s claim had already expired since its discovery in 2007. The respondent brought a summary judgement motion to have the case dismissed.
The judge, mindful that there had been no prior rulings on this issue since the Limitations Act, 2002, came into effect, undertook careful analysis to decide whether the Act would apply to the applicant’s claim of constructive trust, or whether an exemption relating to the recovery of land governed by another statute (of a longer limitation period, which had not yet expired) applied. If the Act applied, the applicant was out of time. If it did not, then the applicant could continue to pursue her claims in court.
The judge remarked that there are difficulties in applying the Limitations Act, 2002, in the family-law setting. For one, the legal ownership of properties is often not considered carefully until after the relationship has gone sour.
Not infrequently, couples discover only in the middle of litigation that the registered title of the matrimonial home belongs to just one of the spouses, though both parties have believed they each owned half. In such a scenario, it is nearly impossible to pinpoint when the limitation period has started to run as the law mandates that it begins when the “act or omission” is discovered or ought to be discovered by a reasonable person. Would that be when the parties separated? When the case started? When the error was discovered?
In short, the judge found that, short of an absurd interpretation, the claim of a constructive trust cannot be applied to property under the Limitations Act, 2002. The judge observed as follows:
[112] It seems to me a claimant would often be aware of making a contribution and might, but would not necessarily, know that that he or she has suffered a deprivation or enriched the other party. While a couple live together and get along reasonably well, there would likely not be any thought of deprivation or loss. Does that knowledge reasonably or actually arise when the couple are no longer getting along? When one of them thinks of separating? When one of them tries to raise the issue of the title to a particular piece of property? Is every case dependent on what the mythical reasonable person would have known at a particular time?
Thus, the judge concluded that it’s impossible to apply the Limitations Act, 2002, to a constructive trust claim in family law. As such, the judge ruled that the limitation period for the claim of constructive trust in Ontario was covered under another statute and had not expired.
Given this case is the first one on the issue of limitation periods for constructive trust claims in family law since the Limitations Act, 2002, came into force, it may well be reviewed by the appellate courts. I am of the opinion that the judge’s reasons are comprehensive and reasonable. For the time being, the decision will stand until a higher court decides otherwise.
*Limitations Act, S.O. 2002, C. 24, s. 4
^Family Law Act. R.S.O. 1990, c. C.12, as am., ss. 7(3)
#2013 ONSC 948 (CanLII)
This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.
Sorry, No More Support Payments. I Found My Dream Job Flipping Burgers – Intentional Under-Employment in Family Law
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Toronto Family Law Lawyer Pei-Shing B. Wang
When it comes to child support and spousal support payments, people react differently. Many honourable payors cut back on other expenses in order to make ends meet, while some others simply quit their jobs and claim inability to pay.
In Ontario, the table child support payments under the Child Support Guidelines are calculated exclusively according to the payor’s income, whereas spousal support obligations depend largely on the gap between the income levels of the payor and the recipient. In other words, the more you earn, the more you pay. Conversely, the less you earn, the less you are supposed to pay.
Therefore, it’s not unheard of that a payor would intentionally quit his or her job or switch to a lower-paying position voluntarily in a bid to reduce support payable. At times I’ve seen a payor’s six-figure salary reduced to social assistance payments, purportedly because of the “economic downturn.”
Thankfully, under the law, if the court is of the opinion that a payor is intentionally unemployed or underemployed, it can impute income and fix the support amount accordingly.*
In deciding whether income should be imputed, the court must ask whether the payor chooses to earn less than what he or she is capable of earning, or whether the reduction is involuntary and reasonable.
Of course, no litigant will state to the court that his or her income has been intentionally reduced in an effort to evade support obligations. The Ontario Court of Appeal ruled in Drygala v. Pauli that there is no need to find a specific intent to evade support obligations before income is imputed.^ As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. If the payor chooses to earn less than what he or she is capable of earning, income may be imputed. A finding of “bad faith” is not required.
When imputing income, the court must determine whether the reduction of income is voluntary or involuntary, and reasonable or unreasonable. The factors include the age, education, experience, skills and health of the payor parent. The court may also look at the support payor’s financial circumstances and the history of payment or non-payment. Available job opportunities may also be relevant.
*The same principle regarding imputation of income applies both to child support and spousal support. See, e.g., Rilli v. Rilli, 2006 CanLII 24451 (ONSC)
^ (2002), 61 O.R. (3d) 711 (C.A.)
This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.