Time Limitation Periods for when a Marriage-Like Relationship Ends in BC
By Millad Ossudallah, Vancouver Family Lawyer
While marriage continues to be the most common form of union in Canada, a growing number of Canadians are opting for common-law or ‘marriage-like’ relationships instead. In the following blog, we'll delve into the complex legal landscape surrounding marriage-like relationships in BC, exploring key implications for unmarried spouses when such a relationship comes to an end.
What is a “Marriage-Like” Relationship?
Under the British Columbia Family Law Act, (the “BC FLA”), you and your partner are considered “spouses” if:
- You are married to each other
- You have lived together in a “marriage-like” relationship for two years or more
- For the purposes of spousal support, you have a child together (even if you’ve lived together for less than two years)
It’s important to note that when it comes to separating, you don’t necessarily need a formal legal process or lawyer involvement. In BC, separation is generally constituted when there is a change in the intentions, words, and actions of either party, relative to their relationship status.
Time Limitations When a “Marriage-Like” Relationship Ends
According to the BC FLA, if a marriage-like relationship ends, either party has up to two years from the date of separation to initiate legal proceedings for an order on the division of property and debt, pension allocation, and child or spousal support. This is a big reason why the date of separation can be so important – it marks the start of your two-year time limit to initiate a claim.
When it comes to establishing the date of separation, the court looks for clear evidence that at least one partner intended to end the relationship, and an action consistent with that intention or a settled intention.
The two-year limitation period for initiating a claim should not be taken lightly because failure to do so could result in the loss of your right to make a claim.
Determining the Date of Separation
The date of separation plays an important role in determining whether a spouse is restricted (or statute barred) from bringing a claim under the BC FLA. When the date of separation is disputed, the court’s focus on the generally accepted characteristics of marriage, such as:
- Intention to remain married
- Having sexual involvement
- Carrying on activities in public
- Sharing financial resources
- Sharing significant family events
If the date of separation remains unclear, the court may ask additional questions like:
- Did the parties live under the same roof?
- What were the sleeping arrangements?
- Did the parties have sexual relations? If not, why?
- Did they maintain an attitude of fidelity to each other?
- Did they buy gifts for each other on special occasions?
- Did they participate together or separately in neighbourhood or community activities? And what was the attitude and conduct of the community towards each of them as a couple?
- What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (such as food, clothing, shelter, etc.)
These questions are examples of what the court may ask, in line with the BC FLA, when examining evidence to determine the actual date of separation. For example, if the parties attend community or societal events and have documented these outings, then the court could perhaps have a differing view of the date of separation.
The Intention to Separate
The courts have continued to note that the intention is key when determining the date of separation. Here are some relevant factors to consider:
- Did at least one spouse intend to separate?
- Was the intention to separate communicated to the other spouse?
- Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:
- Changes in how they behaved towards each other in public
- Changes in how they behaved with each other in private
Statue Barred: How to Respond When a Claim is Made after the 2-year Limitation Period
If you are served with a Notice of Family Claim following the end of a marriage-like relationship, and you think your spouse has filed after the 2-year limitation period, your next step is to file a Counterclaim, which should specify when your marriage-like relationship commenced and the date of separation. Attach only schedule 5 to your Counterclaim, which seeks a legal declaration under section 3 of the FLA that you are not spouses, as well as an order under section 198(2)(b) of the FLA stating that the other party's claim is statute barred due to the date of separation. You could also seek other orders for a delivery of goods, personal possessions, damages, and a restraining order for any real properties.
In addition to filing a Counterclaim, you must also file a Response to Family Claim, which should also specifically advise that your former spouse is statute barred pursuant to section 198(2)(b) of the FLA.
Upon filing your Counterclaim, you should not seek any orders for property, child or spousal support, or other orders, even though you may be entitled to do so. This is because the primary focus of your initial Response to Family Claim is to argue that your former spouse's claim is statute-barred under the FLA, serving as formal notice to both the other party and the court.
It will be prudent to gather evidence that will likely assist your legal counsel in determining when the date of separation occurred and whether the other party is statue barred from advancing a claim. Useful types of evidence could include:
- Joint lease agreements, bills, or statements showing how long you were together
- Financial records indicating shared or separate finances
- Evidence of any jointly held assets, like homes, cars, or other property
- Communications like emails and text messages that confirm an intent to separate
- Social media posts or photographs that might be relevant
How to Approach Litigation
You will then need to decide whether you want to proceed to court to argue the time limitation issue. You can do this through a Summary Trial with written, affidavit evidence or by setting a full Trial that allows for oral evidence (aka viva voce evidence). However, it is important to note that the courts have advised that Summary Trials are generally not suitable when parties differ on critical issues or when they dispute most aspects of the evidence, making it nearly impossible to find facts to determine the case summarily.
As the date of separation is tied to whether your former spouse is statute barred from bringing a claim under the FLA, a pivotal issue, it often inevitability turns to credibility, and a full trial offers the opportunity for oral evidence and cross-examination.
If you find yourself at the end of a marriage-like relationship and are navigating the complexities of a Notice of Family Claim, or if you’re concerned about the two-year limitation period for advancing a claim, we can help! With an experienced family lawyer from Crossroads Law, you'll gain the support and advice you need to protect your rights and interests. Our team is equipped to help you understand the legal implications, ensuring that you can proceed with certainty and peace of mind. Don't leave it to chance - schedule your free 20-minute consultation with a Crossroads Law family lawyer today.