Is There a Time Limit to Sue for Spousal Support (Alimony)?

Limitations vs. Delay in Seeking Spousal Support

There is a difference between a limitations period and extreme delay in law. Photo credit: Jordan Benson.

One thing you should always discuss with your lawyer early on - preferably at the first consultation - is whether there is a time limit to collect a certain sum of money. In law, there are limitations periods to consider and there is delay. 

What is a "Limitations Period"?

A limitations period means that you have only a certain amount of time to bring someone to court to get something that you believe you are owed. After the time is up, you can't get any relief on that issue.

Ontario law sets up certain time limits for certain types of claims. In divorce and family law situations, generally the time limit to make a court application for a property matter is up to 2 years after a divorce, or 6 years after a separation, whichever comes first.

For example, if a person and their spouse separate on January 1, 2023, and they own a house and cars together and dispute how much money one of them is owed, but they still haven't resolved the issue by December 31, 2028, one can't bring the other to court for recovering his or her property interest.

Is there a Time Limit for Collecting Spousal Support?

The Limitations Act specifically says that limitations periods like the one I described above do not apply to alimony or spousal support. So, there is no set 2-year, 6-year, or any fixed period to seek support. 

For those who seek support, this is good news because you can bring a court proceeding (or negotiate with the knowledge that one could go to court) even many years after. 

For those who are concerned their ex-spouse will come out of the woodwork in ten or twenty years, this could be disconcerting news. I get it.

Is there no limit on how much a person can delay before suing for alimony or spousal support?

The courts have developed law around delay for bringing court proceedings to collect on spousal support.

In cases where a person has delayed a long time to bring an application for spousal support, a court would examine the length of time. If the length of time is considerable, say, 10 years +, this would probably diminish the claim or could cancel it out. Generally, the longer the delay, the weaker the claim becomes.

The term "excessive delay" is sometimes used by judges in the caselaw to describe an amount of time that shows that a person who is making the claim did not have a reasonable expectation of getting support at the time the marriage or relationship ended. 

Another factor a judge would look at is the person's financial behaviour during the relationship or thereafter. For example, if the seeker of support did not pay his or her share of the mortgage and repairs, and this can be proved by the other spouse, this could weaken the seeker's claim to support down the road.

A court would also examine the extent, if any, of the economic integration of the estranged spouses after the date of separation, or even after the date they got divorced. For example, if for many years after separation or divorce the spouses stayed financially interdependent (e.g. with joint bank accounts and joint lines of credit) this would strengthen the seeker's claim to support. If, on the other hand, there was a clean break since the date of separation, this would weaken a seeker's claim.

The health and mental condition of the seeker of support can be a factors that influence a judge's decision.

These are just some factors of what you could speak with your divorce or family law lawyer about when it comes to your own situation.

Karlovic v Karlovic, 2018 ONSC 4233

In one court decision, the husband made a court application for spousal support 13 years after he and his wife had separated. The judge decided that the estranged husband was not owed any spousal support. These are some of the reasons given:

• the marriage duration was considered "medium"

• they were separated for about as long as they were married

• the husband had not adopted a role during the relationship that impaired his ability to earn income

• there was little to no financial interdependence between the two people after separation

• the husband did not assist the estranged wife to pay off the balance of the mortgage

• the two people ceased using joint accounts long before they separated

• no evidence of the husband taking on childcare responsibilities

• the estranged wife's post-separation increases in income came from her own post-separation efforts.