Missing a limitation period in BC family law can permanently bar your claim — here's what deadlines apply and when they start running.
Limitation periods are one of the most consequential and least understood aspects of BC family law. Miss the deadline, and you may permanently lose the right to make a claim — regardless of how meritorious it might be. Understanding which deadlines apply to your situation is essential from the moment you separate.
The General Rule: Two Years Under the Limitation Act
BC's *Limitation Act* establishes a general two-year limitation period for most civil claims. The clock starts running from the date the claim is "discovered" — meaning the date you knew, or reasonably ought to have known, that you had a claim. In family law, the discovery date is often the date of separation.
Property Division: Two Years From Separation
The *Family Law Act* (FLA) s.198 sets out the limitation period for property division claims. A spouse must commence a proceeding to divide family property or family debt within two years of the date of separation. This is a strict deadline. If you wait too long, your property claim may be extinguished — including a claim to a share of the family home, investments, pensions, or business interests.
The date of separation is not always obvious, particularly for couples who separated gradually or who attempted reconciliation. If the date is disputed, this becomes a threshold legal issue. Getting legal advice promptly after separation protects the clock from running against you.
Spousal Support: No Hard Limitation Period, But Delay Matters
There is no fixed limitation period for commencing a spousal support claim. A spouse can apply for support at any time during or after separation. However, delay has practical consequences:
- A court may limit retroactive support to a shorter period if the applicant waited years to claim.
- A long delay in applying may be seen as evidence that support was not, in fact, needed.
- If you are seeking retroactive support (covering a period before you filed), courts apply a multi-factor analysis from *Kerr v. Baranow* and later cases — and delay weighs against a large retroactive award.
Child Support: No Expiry, With Retroactive Limits
Child support cannot be limited by a limitation period — the right to support belongs to the child, not the parent. A parent can seek child support at any time while the child remains entitled to it. However, the *Child Support Guidelines* place practical limits on retroactive support. Courts will generally not order retroactive child support going back more than three years before the date of the application (absent blameworthy conduct by the payor, such as concealing income).
Protection Orders: Immediate
Applications for protection orders under the FLA (formerly restraining orders) are not subject to a limitation period and can be brought at any time. Emergency applications can be heard the same day without notice to the other party.
Wills Variation Claims: 180 Days From Probate
This is critically important for estate matters. Under WESA s.61, a spouse or child who wishes to challenge a will as failing to provide adequate provision must commence the wills variation proceeding within 180 days of the date the probate grant is issued. This deadline is strict and courts rarely extend it. Missing the 180-day window permanently extinguishes the wills variation claim — regardless of how strong the claim might have been.
Estate Claims Generally
Claims against an estate (creditor claims, constructive trust, unjust enrichment) are subject to the general two-year limitation period under the *Limitation Act*, running from the date of the deceased's death or from the date of discovery of the claim.
Acting Promptly: What You Should Do
1. Obtain legal advice as soon as possible after separation — ideally within the first few weeks.
2. Note the date of separation carefully and preserve any evidence of that date.
3. If you have claims against an estate, act immediately upon being notified of the probate grant.
4. Do not assume delay is harmless — it can permanently extinguish rights worth tens of thousands of dollars or more.
5. Even if you hope to resolve matters through negotiation, file a claim to stop the clock if the limitation period is approaching.
Extension in Exceptional Circumstances
Courts have limited discretion to extend limitation periods where a claimant did not discover the claim due to fraudulent concealment, or where special circumstances apply. These extensions are rare and cannot be counted on. The better approach is to act within time.
*This article is general information about BC family law and estate law. It is not legal advice. Please consult a qualified BC lawyer for advice specific to your circumstances.*
It starts on the date of separation. If the date of separation is disputed, this can itself become a legal issue. Courts look at when the spouses began living separate and apart — including in some cases when they separated emotionally and practically while still under the same roof. Getting legal advice promptly after separation prevents the clock from running unnoticed.
Yes. If you wait more than two years from the date of separation to commence a property division proceeding, your claim may be permanently extinguished under FLA s.198. This includes claims to the family home, investments, pensions, and other family property. Do not assume that your interest is protected simply because your name is not (or is) on title — start the legal process early.
Under WESA s.61, a wills variation claim must be commenced within 180 days of the date a probate grant is issued. This is a hard deadline — courts have very limited discretion to extend it. If you believe you have been inadequately provided for in a will, consult a lawyer immediately upon learning that probate has been granted.
There is no limitation period on the right to child support — it belongs to the child and cannot be waived by the custodial parent. However, courts typically limit retroactive support to three years before the application date, absent exceptional circumstances such as concealment of income by the payor.
In limited circumstances, a court may grant an extension where the claim was not discoverable due to fraud or concealment, or where special circumstances apply. However, these extensions are rare. If you believe you have missed a limitation period, consult a lawyer immediately — do not simply assume the claim is lost without getting advice.