Both married and common-law spouses may be entitled to support following the breakdown of a relationship. While other claims in family law are subject to limitation periods (for example, a claim for equalization of property), there is no limitation period for bringing a claim for spousal support under either the Family Law Act or Divorce Act. While there is no limitation period barring a claim for spousal support, considerable delay in making a claim for support may result in the claim being dismissed.
How delay will be considered and treated will depend on the specific facts of each case. The case law, however, sets out the factors to be considered when determining a claim for spousal support in the face of delay.
In Fyfe v. Jouppien, the court was tasked with assessing a claim for spousal support six years following separation. The parties, in that case, had been married for eighteen years. In the decision, Chappel J. stated that:
“[E]xcessive delay in seeking spousal support by a party may raise questions as to whether there was an ongoing reasonable expectation of support, and whether there was actual need on the part of the claimant spouse”.
In the Fyfe case, the parties agreed that the claimant of spousal support did not have any entitlement to support at the time of separation but the circumstances had changed resulting in a finding that the claimant was now entitled to support on a needs basis.
Some of the factors the court will consider when deciding whether to grant a claim for spousal support in the face of delay are as follows:
- Financial need arising after separation;
- Financial interdependence, both before and particularly after separation; and
- The length of the delay in making the claim.
Other decisions have suggested that delay should not affect a claim for support, provided that there is a compelling reason for the delay in bringing the claim.
While the delay in bringing a claim for support is not a bar to support and there are many cases in which support has been ordered notwithstanding delay, one should not put off bringing a claim. As previously noted, each case will turn on its own specific facts and delay may increase the possibility that a claim will be dismissed.