Family Law in Ontario: A Plain-Language Overview

Separation raises many questions at once: where the children will live, who pays what, what happens to the house, and whether you need a divorce. Family law is the group of rules that answers these questions, and it can feel like a maze when you are in the middle of it.

This overview gives you a map. It explains the main topics, how married and unmarried couples are treated differently, which court hears what, and what to do first. It is general information, not advice on your situation.

The four main areas of family law

Most separations involve some mix of four topics. They are linked, but each has its own rules and each can be settled by agreement or decided by a court.

You may not need to deal with all four. A common-law couple, for example, cannot get a divorce, because the federal Divorce Act applies to married spouses only.

Parenting and support

Under the Divorce Act, a court can allocate parenting time by a schedule and can allocate decision-making responsibility in whole or in part. If the parties submit a parenting plan, the court must include it in the parenting order unless it is not in the child's best interests. A plan that is only informal can be difficult to enforce.

Non-parents, such as grandparents, may apply for a parenting order (decision-making responsibility) or a contact order, and a judge must make the order that is in the children's best interests. A non-parent applying for decision-making responsibility must file extra documents, including a Children's Aid Society report and a police record check.

Child support is usually set using the Child Support Guidelines table, and a court can order certain extra costs, such as child care, certain medical costs and post-secondary education, to be shared in proportion to income. If support is not paid, the Family Responsibility Office (FRO) has tools such as bank garnishment, driver's licence suspension and credit bureau reporting.

Property and the family home

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 equalization payment is the larger net amount minus the smaller, divided by two.

Common-law couples are not legally required to split property acquired while living together, although 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.

Time limits matter. To have a court decide an equalization 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.

Divorce and the courts

A divorce under the Divorce Act is granted on the breakdown of the marriage, which is established when the spouses have lived separate and apart for at least one year immediately before the determination. A court in a province can hear a divorce if either spouse has been habitually resident there for at least one year before the proceeding starts.

The Superior Court of Justice hears divorce, division of family property, claims about the family home, trust and unjust enrichment claims, parenting, and support. The Ontario Court of Justice hears parenting and support matters and enforcement of support, but not divorce or property division. The Family Court Branch of the Superior Court is in 25 locations, including Barrie, Lindsay and Peterborough, and is the only court in Ontario that can hear all types of family law cases.

A case usually starts in the municipality where you or your spouse lives, although parenting matters may instead start where the children live.

Resolving matters without a trial

Under the Divorce Act, parties must, to the extent appropriate, try to resolve the issues through a family dispute resolution process. One option is collaborative family law, where both parties and their lawyers agree not to go to court. If no agreement is reached you can still go to court, but you will need to hire a different lawyer.

What to do next

• List which of the four areas apply to you: parenting, support, property, divorce.
• Write down your date of separation, since time limits can run from it.
• Gather financial records: income, debts, bank, pension, RRSP and property documents.
• Note whether you are married or common-law, because the rules differ.
• Find your local family court office if you are unsure where to file; staff can tell you where a case should start.
• Speak with a family lawyer before signing any agreement.

A lawyer can confirm how these rules apply to your facts and which steps to take first.

Frequently asked questions