Ontario Family Law Basics for Separating Parents and Spouses

Separation brings several questions at once: where the children will live, who pays what, what happens to the house and savings, and where to go if you cannot agree. It helps to see these as separate issues, each with its own rules.

This article gives you a map of the main issues in Ontario and where each one is decided. It does not replace advice about your own situation, especially where children, safety or large assets are involved.

The main issues and where they are decided

Not every court hears every issue. The Superior Court of Justice hears divorce, family property division, matrimonial home claims, trust and unjust enrichment claims, family arbitration appeals, parenting, and child and spousal support. The Ontario Court of Justice hears parenting, child and spousal support, support enforcement, adoption and child protection, but not divorce or property.

In 25 locations, the Family Court branch of the Superior Court of Justice (Unified Family Court) can hear all family law issues. Outside those locations, you start in either the Superior Court of Justice or the Ontario Court of Justice, depending on the claims.

Children and support

Parenting questions cover where children live and who makes major decisions. Child support is calculated under guidelines, and the amount depends on the facts. Spousal support is a separate question from child support, and how it applies depends on your situation, so it is worth confirming with a lawyer.

Undue hardship is one situation where a court may order an amount different from the usual child support amount. Under the Federal Child Support Guidelines, either spouse may ask the court to award a different amount if the spouse or child would otherwise suffer undue hardship. Examples include an unusually high level of debts reasonably incurred to support the spouses and children before separation, or to earn a living, and unusually high expenses for exercising parenting time.

Even where undue hardship is found, the court must deny the claim if the claimant's household would have a higher standard of living than the other spouse's household after child support is set.

Property and the family home

For married spouses, property is divided by equalization. Each spouse values the property they own on the separation date, less debts and excluded property, then subtracts net property owned on the marriage date. The spouse with the larger net family property pays half the difference.

• Gifts or inheritances (other than the family home), life insurance proceeds received because someone died, personal injury money, and property excluded by agreement are not shared.
• The full value of the family home must be shared even if it was owned before marriage, gifted or inherited, and a court can divide it differently only in very special situations where an equal split would be extremely unfair.
• Common-law couples are not legally required to split property acquired while living together, although they may recover contributions to the other's property.

A married spouse can ask the court for exclusive possession of the family home, even if it is in the other spouse's name. The judge considers violence, including against children, whether the spouse has another suitable place to live, the children's best interests and both spouses' finances. Unmarried partners are not given the same right in Ontario's guidance, and they are told to see a lawyer about their rights to the shared home.

Time limits apply. A court claim for an equalization payment must be started within six years of separation or two years after the divorce is final, whichever comes first.

Resolving issues outside court

A family dispute resolution process is a process outside court, including negotiation, mediation and collaborative law. In a divorce proceeding, parties must try to resolve matters this way to the extent it is appropriate to do so. Legal advisers must encourage clients to try it unless it would clearly not be appropriate, for example where there is family violence.

• Mediation is voluntary. The mediator is neutral and does not take sides, make decisions or give legal advice.
• Closed mediation discussions and documents cannot be used in court, with limited exceptions such as child safety concerns.
• Mediators screen each person separately at intake to confirm an equal negotiating position, and screening continues throughout.
• In collaborative family law, both parties and their lawyers agree not to go to court. If there is no agreement, a party can still go to court but must hire a different lawyer.

Ontario says mediation can be used before, during or instead of a court case and can be faster, cheaper and more private than court. The court guide does not make mediation mandatory before a family court case. The early step the court guide does require is the Mandatory Information Program, where parties learn about dispute resolution options; parties must attend a session before their first appearance or case conference, and no later than 45 days after the case starts.

There are exceptions. You do not need to attend if you already attended a Mandatory Information Program for this or another case, you agree on all matters, the case involves only divorce, costs, an existing agreement or order, or family arbitration, or it is a motion to change a final order for child or spousal support only. A judge can also excuse attendance if your circumstances are urgent or attending would cause you hardship.

What to do next

• Write down your separation date, the marriage date if any, and where the children have lived.
• Gather financial records: income, debts, accounts, retirement plans and the deed or lease for your home.
• If safety is a concern, tell any mediator or lawyer at the start. The Victim Support Line is 1-888-579-2888.
• Visit a Family Law Information Centre for information on separation, divorce, alternative dispute resolution and court processes.
• Speak with a lawyer before signing an agreement or letting a deadline pass.

Frequently asked questions