Does a Separated Couple Have to Go to Court in Ontario?

When a relationship ends, many people picture a courtroom. In fact, separating is something you do in your own life first: you move apart and decide how to handle children, support and property. Whether a judge becomes involved depends on whether you and your former partner can agree.

This article explains the main ways couples settle matters without a hearing, when those routes may not be a good fit, and when court is still the right place to go in Ontario.

Separating is not the same as going to court

Separating and going to court are different things. Court becomes part of the picture when someone asks a judge to decide something, such as parenting arrangements, support or a divorce, or when you need an order enforced or changed.

Even when a court case is started, it does not always mean a trial. A case where the other side never files an answer can be decided by a judge on written evidence, and cases with an answer include conferences aimed at working things out. How this applies depends on your situation, so it is worth confirming with a lawyer.

Ways to reach agreement without a hearing

• Mediation: a neutral mediator helps you reach agreement but does not take sides, make decisions or give legal advice.
• Collaborative family law: each person works with their own lawyer toward an agreement, and everyone agrees not to go to court.
• Direct negotiation with or through lawyers, which may lead to a written agreement.

Free on-site mediation is available at family courts on the day a matter is scheduled for court. Off-site mediation may charge user fees on a scale based on income and number of dependants.

Be aware of one trade-off with collaborative law: if there is no agreement, each person needs a new lawyer to go to court.

The law encourages settlement, with limits

Under the Divorce Act, to the extent appropriate, the parties to a proceeding must try to resolve their matters through a family dispute resolution process, and legal advisers must encourage this unless the circumstances make it clearly inappropriate.

Exception: some types of dispute resolution may not be appropriate in high-conflict cases or where there is a power imbalance or family violence. Ontario mediators screen for intimate partner violence at intake and throughout the process.

When court may still be needed

Under the Family Law Act, a restraining order can be made against a spouse, former spouse or a person who is cohabiting or has cohabited with the applicant, if the applicant has reasonable grounds to fear for their own safety or for the safety of a child in their lawful custody. In a parenting case, the Children's Law Reform Act lets the court make a restraining order against any person, including someone the applicant was never married to or lived with, if the applicant has reasonable grounds to fear for their own safety or that of a child.

If you have been served with a court application, do not ignore it. A respondent who does not answer may lose the right to further notice and to take part in the case, and the court may deal with it in their absence.

What to do next

• Contact a Family Law Information Centre, which gives free information on separation, divorce and court processes, though it does not give legal advice.
• Ask about duty counsel or advice counsel at your family courthouse, which may give 20 minutes of free advice whether or not you are eligible for legal aid.
• Call the Law Society Referral Service for the name of a lawyer in your community and a consultation of up to 30 minutes at no charge: 1-855-947-5255, or 416-947-5255 in the GTA.
• If you are a victim of domestic violence, ask about a Family Court Support Worker, who can help with safety planning.
• Write down your key concerns and gather your financial and parenting information before meeting anyone.

Frequently asked questions