One of the most important reasons to hire an experienced lawyer when going through a legal conflict, including separation and divorce, is in relation to limitation periods. Limitation periods are time limits that apply to legal actions. In most cases, limitation periods come up in matters related to civil litigation, but they can apply to many areas of the law, including family law. In a recent decision from the Alberta Court of Queen’s Bench, the court issued a ruling on whether a limitation period related to settling matrimonial property division could be extended.

Matrimonial property issues are ignored

The parties were married before separating in June 2016. The plaintiff sued for divorce but did not commence a combined proceeding for divorce and matrimonial property division. Nevertheless, a divorce judgment was granted on February 13, 2017.

By May 2018 the plaintiff had retained a lawyer to deal with matrimonial property division. The defendant also retained legal representation at this time and the parties began to gather and disclose information. Throughout the process, their lawyers did not discuss the need to commence a matrimonial property division action.

The limitation period set out in the Matrimonial Property Act states that parties have two years from the date of divorce to bring an action relating to the division of matrimonial property. However, by the time a matrimonial property action was commenced on March 26, 2019, that two-year time limit had already passed. The plaintiff had been seeking an equal division of property, but the defendant indicated she was out of time and that all matrimonial property had already been divided.

Can limitation periods be extended?

The court pointed out the Limitations Act does not apply to limitation periods set out in the Matrimonial Property Act. In matrimonial property actions, courts may infer an agreement to extend or suspend the limitation period based on the parties’ words and conduct.

The court noted that case law state the ongoing, normal dealings between parties attempting to resolve a claim are not sufficient to suspend a limitation period, citing decisions from both Ontario and Alberta. Instead, it must be clear from the conduct of the parties that they intend to extend limitation periods during negotiations.

The court looked at how the parties and their lawyers worked through the process of divorce in the time leading up to the application. The plaintiff stated that a standstill agreement arose by words or conduct during the negotiations and that the limitation period should be extended as a result. She said she relied to her detriment on the defendant’s words and conducts and understood that negotiations were ongoing. Furthermore, she added it was common practice to engage in negotiations with an understanding that taking action is suspended during that process. In short, she stated that she understood the limitation period would be extended while they were negotiating. Unfortunately, the plaintiff did not provide any evidence in support of the practice among family law lawyers to extend limitation periods in such situations. The court wrote, “The plaintiff bears the onus to put its best foot forward to prove a genuine issue for trial in response to the summary judgment application. The plaintiff did not suggest she wanted an opportunity to provide expert evidence of a standard of practice, and I see no reasonable prospect of a qualified expert opinion that would support the plaintiff’s case.”

Ultimately, the court stated there was no evidence the defendant agreed, offered, or promised to extend any limitation periods, and as a result, the limitation period should be enforced.

HMC Lawyers are committed to protecting your rights. If you have recently separated from your spouse, or are going through the process of a divorce, speak to one of our family lawyers about division of property issues to ensure that you are properly protected. Call 1-800-480-3534 or contact us online to make an appointment. We represent clients primarily in Calgary and surrounding areas.