Family Law Act Ontario: What It Covers and Who It Applies To

If you are separating in Ontario you will hear about two main laws: the Family Law Act, which is Ontario's own statute, and the Divorce Act, which is federal. People often mix them up, and which one applies depends on whether you are married and what you are asking for.

This article explains the general split between the two, how married and common-law partners are treated, and where the rules overlap. It does not replace advice on how the law applies to you.

Two laws, two roles

The Divorce Act is a federal law. It governs divorce itself, which is granted on breakdown of the marriage, established when the spouses have lived separate and apart for at least one year immediately before the determination. Under the Divorce Act, parenting time may be allocated by schedule and decision-making responsibility may be allocated in whole or in part.

The Family Law Act is Ontario's provincial statute, and it is a separate law from the Divorce Act, which applies to married spouses only.

Who counts as a spouse?

Under the Divorce Act, only married spouses are covered, and in certain sections the word spouse includes a former spouse. That means a common-law partner cannot obtain a divorce.

How the Family Law Act treats an unmarried partner depends on your situation, so it is worth confirming with a lawyer before you rely on it.

Property: married versus common-law

Property is where the married and unmarried treatment differs most. Married spouses must generally split property acquired during the marriage equally when the marriage ends, and the family home is shared at full value even if it was owned before the marriage, gifted or inherited. The court can divide differently only in very special situations.

The equalization payment is the larger net amount minus the smaller, divided by two. To have a court decide the payment, you must apply within six years from the day of separation or two years from the day the divorce is final, whichever comes first.

Common-law couples are not legally required to split property acquired while living together. A partner who contributed to property the other owns may have a right to part of it, and may need to go to court to recover that contribution.

Support, parenting and which court

Child support and spousal support, and parenting time and decision-making, can be dealt with by both the Superior Court of Justice and the Ontario Court of Justice. The Superior Court of Justice hears divorce, division of family property, family home claims, and trust and unjust enrichment claims, while the Ontario Court of Justice does not hear divorce or property division.

• Divorce: Superior Court of Justice only.
• Property division and family home claims: Superior Court of Justice.
• Parenting, child support and spousal support: either court.
• Enforcement of support: Ontario Court of Justice can hear it, and the FRO has its own enforcement tools.

The Family Court Branch of the Superior Court sits in 25 locations, including Barrie, Lindsay and Peterborough, and can hear all types of family law cases.

What to do next

• Confirm whether you are legally married, since that decides whether the Divorce Act applies.
• Write down the date you separated and the date any divorce becomes final, to track time limits.
• Gather proof of your relationship's length and any shared children if you are not married.
• List your property, debts and the family home, and how each was acquired.
• Ask a lawyer how the Family Law Act definition of spouse applies to your situation.

Frequently asked questions