Limitation Periods and Spousal Support in Alberta
The Limitations Act, RSA 2000, c L-12 bars claimants from seeking a civil remedial order after two years on the date on which the claimant knew of the injury or ought to have known (or ten years after the claim arose whichever happens first). As family and divorce cases are civil cases in nature, there has been debate as to what extent the Limitations Act applies to spousal support under the Family Law Act, SA 2003 c F-4.5. The Family Law Act does not specify a deadline in which applicants may seek spousal support from their former adult interdependent partner, and neither does the Divorce Act.
There has now been recent rulings by the Court of King’s Bench of Alberta clarifying these issues. In Thalheimer v Chalut, 2021 ABQB 19, the Respondent argued that his former spouse’s claim for partner support should be dismissed because it should be barred by the Limitations Act, in that the parties separated in 2016, and she did bring her claim until 2020. The Justice held that the two-year limitation period for applying for spousal support under the Family Law Act does not apply.
The Justice explained:
[34] It would be illogical to require that a separated partner make a claim immediately following separation, or that separation starts a time clock. Some support may initially not be provided, in cases of an unhappy or angry separation or where there is hoped-for independence, for example. The Family Law Act encourages independence following separation. Is there a time limit on how long a separated party can try to be independent before realizing that is not feasible? A “trial separation” may become permanent, but when might it start a limitation clock running? What about changes in circumstances?
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[36] My conclusion is that the Limitations Act does not apply to claims for support by separated adult interdependent partners in Alberta. I recognize that the issue of laches is one that might be raised (as held by Justice Feth in Blaney v Murphy).
The Court did suggest that there may still be a laches argument to be made (meaning that one could argue that the claimant did not bring their matter to court in a timely manner which has caused prejudice to the respondent), and the Court also left open the possibility that there may be a limitation period for retroactive spousal support claims under the Family Law Act. However, the Court ultimately allowed the support application and awarded interim spousal support.
In another recent case, Blaney v Murphy, 2020 ABQB 196 [Blaney], the Court of King’s Bench of Alberta also ruled similarly. In that case, although the parties disagreed as to the date of separation, Ms. Blaney admitted that she commenced her claim more than two years after the parties stopped living together. She sought support under section 56 of the Family Law Act, and Mr. Murphy submitted “the ‘obligation’ to provide partner support under section 56 is an obligation to which the definition of injury applies and is therefore subject to the two-year limitation period” (para 37).
Although the Court stated the issue of of whether the Limitations Act applies to the claim for partner support should be determined at a trial, the Court did note at para 46-47:
[46] In my view, that analysis is likely incomplete (or at least arguably so). To constitute an “injury” there must be “non-performance of an obligation”. It is the non-performance of the obligation that gives the claimant the right to pursue a remedial order to ensure performance of the obligation or to seek compensation for the breach…
[47] The obligation to provide support for the other adult independent partner, as set out in section 56 of the FLA, is arguably only triggered when an application for support is made under section 57. This is because, like child support, the obligation to pay spousal support is statutory and “application based”.
The Court of Appeal has thus far yet to weigh in as to whether limitations periods apply to support applications under the Family Law Act (Blackburn v Boucher, 2018 ABCA 400 at para 12 [Blackburn]), but as the Court in Blaney stated at para 71:
The possibility of a continuing support obligation was recognized by the Court of Appeal in Blackburn, which noted that the effect of the prescription period may simply be to limit any partner support order to the two years prior to the commencement date of the action.
In awarding interim support in Blaney, the Justice further stated that (at para 74):
The obligation to pay partner support not only continues throughout the period for which support should be provided, but must also respond to changes in circumstances. As one example, a claim to non-compensatory support might not exist when partners initially separate because the partners earn similar incomes or the prospective payor does not have the means to pay, but as time passes, changes in income may invite a successful claim for support where none previously existed. As another example, a partner may decide that an entitlement to a small amount of support does not warrant the cost of an application, but a change in the financial circumstances of either partner might change the economics of an application.
In conclusion, the Court of King’s Bench has now ruled that the two-year limitation period will likely not be applicable in future partner support applications under the Family Law Act.