Ontario Court of Justice or Superior Court for Family Cases

Ontario family cases are not all heard in the same court. The right one depends on what you are asking for, and where you live.

This article compares the Ontario Court of Justice and the Superior Court of Justice, with a focus on divorce and property, which is where many people get tripped up.

Three places a family case can be heard

The Family Court Branch of the Superior Court of Justice is the only court in Ontario that can hear all types of family law cases. It has 25 locations, and people living in one of those areas go to their local branch.

Outside those locations, two courts share the work: the Superior Court of Justice and the Ontario Court of Justice. What each can decide is different, as the next section shows.

What each court hears outside Family Court Branch areas

The Superior Court of Justice also hears claims about the family home, trust and unjust enrichment claims, and appeals from family arbitrations. The Ontario Court of Justice also hears enforcement of support under agreements or orders.

Divorce and property: the key dividing line

If you need a divorce or a division of property and you live outside a Family Court Branch location, the Ontario Court of Justice is not an option, because it does not hear either. The Superior Court of Justice does.

For divorce, the federal Divorce Act also sets a residence test. A court in a province can hear a divorce proceeding if either spouse has been habitually resident in that province for at least one year immediately before the proceeding starts.

Many separating couples have a mix of issues, such as parenting, support, property and divorce. When they are combined, the court that can hear all of them is usually the practical choice, but a lawyer can confirm how to structure your claims.

How the process differs between the courts

• Filing fees: there is no fee to file documents at the Ontario Court of Justice. Filings in the Superior Court of Justice may require a fee, but a fee waiver may be available.
• First appearance: at the Ontario Court of Justice or the Family Court Branch, the clerk usually gives the applicant a first appearance date when the application is issued. This does not apply where the applicant seeks a divorce or makes property claims.
• Superior Court of Justice cases: no first appearance is scheduled when an application is issued. The party must book a case conference instead.

Local practice, including whether an appearance is in person or virtual, can vary by region. Check with the court office before you plan around a date.

Where you start the case also matters. As a general rule, a family case must be started in the municipality where a party resides. A case about decision-making responsibility, parenting time or contact with a child must be started in the municipality where the child habitually resides, except as provided under s. 22 of the Children's Law Reform Act. A case may also be started in a municipality chosen by all parties, but only with the court's advance permission given in that municipality.

If there is immediate danger that a child may be removed from Ontario, or immediate danger to a child's or party's health or safety, a party may start a case and have a motion heard in any municipality. The case is then transferred to the proper municipality immediately after the motion unless the court orders otherwise.

Once the other side is served, a respondent served in Canada or the United States has 30 calendar days to serve and file an answer. A respondent served outside Canada or the United States has 60 days. In each case in which an answer is filed, a judge must conduct at least one conference, although a case conference is optional in child protection cases and international child abduction cases are treated separately.

What to do next

• List every issue you need decided: parenting, support, property, divorce, the family home.
• Check whether your area has a Family Court Branch.
• If it does not, check whether any of your issues, such as divorce or property, require the Superior Court of Justice.
• Visit a Family Law Information Centre for free forms and general procedural information. Staff give information, not legal advice.
• Speak to a lawyer if your case mixes issues or you are unsure where to file. Low-income people may get free legal advice at court from Legal Aid Ontario advice lawyers and duty counsel.

Frequently asked questions