What the Family Law Act Covers in Ontario: A Plain Guide

People often hear that something is governed by the Family Law Act without knowing what that means. In Ontario, the Act is best known for how property is divided when a marriage ends and for protections around the family home.

This guide gives a plain overview. It does not replace advice on your own situation, since results depend on your facts.

Dividing property: equalization

Ontario uses an equalization approach for married spouses. Each spouse values the property they own on the separation date, less debts and excluded property, then subtracts the net property they owned on the date of marriage. The spouse with the larger net family property pays half the difference as the equalization payment. A negative share counts as zero.

This is a calculation, not a rule that every item is physically split in half. It compares the growth in each person's net worth.

What is not shared

Some property is excluded from the calculation.

• Gifts or inheritances, other than the family home
• Life insurance proceeds received because someone died
• Personal injury money
• Property excluded by agreement

Keep in mind that excluded property still needs to be documented. A lawyer or accountant can help you with valuation and proof.

The matrimonial home

The family home is treated differently. Its full value must be shared even if it was owned before the marriage, gifted or inherited. A court can divide it differently only in very special situations where an equal split would be extremely unfair.

A married spouse can also 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.

Who it applies to, deadlines and death

On a death, a survivor who wants to claim equalization must file the Election of Surviving Spouse form with the Estate Registrar for Ontario no later than six months from the spouse's death. If no election is filed, the survivor is deemed to take under the will or intestacy. How this applies to a particular estate depends on the facts, so it is worth confirming with a lawyer.

If the survivor elects equalization, gifts to them in the will are deemed revoked unless the will expressly says the gifts are in addition. A dependant may also ask the court for adequate support out of the estate, whether or not there is a will, and there is a six-month limitation period for that claim. How these time limits apply to you is worth confirming with a lawyer.

Mediation, courts and the first steps

Not every family issue has to start in a courtroom. Ontario says mediation can be used before, during or instead of a court case and can be faster, cheaper and more private than court. Family mediation is voluntary, and the mediator is a neutral third party who does not take sides, make decisions or give legal advice. Under the Divorce Act, parties to a proceeding must try to resolve matters through a family dispute resolution process, to the extent it is appropriate to do so.

Where a case is started depends on where you live and what you are asking for. Generally, you start in the municipality where you or your spouse lives, though if parenting is involved, the municipality where the children live may apply instead. The Family Court Branch of the Superior Court of Justice sits in 25 locations, including Barrie, Lindsay and Peterborough, and all family law issues can be heard there. Outside those locations, you start in either the Superior Court of Justice or the Ontario Court of Justice, depending on the claims.

• A case starts with an application (Form 8, 8A or a joint application)
• The respondent has 30 days to serve and file an Answer (Form 10), or 60 days if they live outside Canada and the United States
• Financial statements are Form 13 for support claims or Form 13.1 for property or debt claims
• Parties generally attend a Mandatory Information Program session no later than 45 days after the case starts, though exceptions apply, for example where you agree on all matters

What to do next

Property claims can be heard in the Superior Court of Justice, which hears divorce, property division, matrimonial home claims, and trust and unjust enrichment claims. Start by organizing the facts.

• Write down your date of marriage and date of separation
• List what each spouse owned on those dates, and the debts
• Note any gifts, inheritances or insurance proceeds
• Keep deadlines in view, and ask a lawyer to confirm them

Frequently asked questions