Which City Do You File a Family Case In? Ontario's Rule 5

You live in one city, your ex lives in another, and the children may be somewhere else again. Before you file anything, you need to know where the case belongs. Starting in the wrong place can cost you time and may mean a transfer.

Ontario's Family Law Rules set out where to start a case. The rule is short, but it has several exceptions, especially for cases about children. This guide walks through them in plain words.

The general rule: where a party lives

Under rule 5(1)(a) of the Family Law Rules, a family case must generally be started in the municipality where a party resides. That means either the applicant or the respondent can usually point to their own home city as a proper place to start.

This general rule is the starting point only. If your case involves children, a different rule usually takes over.

Cases about children: where the child habitually 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 section 22 of the Children's Law Reform Act. The question is where the child usually lives, not where each parent lives.

This matters when parents live in different cities. If the child mainly lives in one city, that is normally where a parenting case belongs, even if you live elsewhere. Questions about where a child habitually resides, or how section 22 applies, can turn on the facts, so a lawyer can confirm your situation.

Exceptions: agreement, urgency, child protection and adoption

• Choosing by agreement: a case may be started in a municipality chosen by all parties, but only with the court's advance permission given in that municipality.
• Urgent danger: if there is immediate danger that a child may be removed from Ontario, or immediate danger to a child's or a 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.
• Child protection: these cases start in the municipality set by section 91(2) of the Child, Youth and Family Services Act, 2017.
• Adoption: applications start in the municipality set by section 203(1) of that Act.

Note that agreeing with the other party is not enough by itself. The court's permission must come first.

How location connects to the court you use

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. The list of locations can change, so check whether your municipality is served.

Outside those locations, family work is divided between the Superior Court of Justice and the Ontario Court of Justice. For example, the Ontario Court of Justice does not hear divorce or property division, while the Superior Court of Justice does. A separate guide compares those two courts in detail.

Where you file also affects the first steps. In the Superior Court of Justice, no first appearance is scheduled when an application is issued, and the party must book a case conference instead.

Divorce: the one-year residency rule

Location for a divorce has a second layer. Under section 3(1) of the federal Divorce Act, 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. So one spouse must have lived in Ontario for that year before a divorce can start here.

This is separate from rule 5. Rule 5 decides the municipality within Ontario, while the Divorce Act decides whether Ontario courts can hear the divorce at all.

What to do next

• Write down where each parent lives and where each child mainly lives, with dates of any recent moves.
• Decide what your case is about: parenting, support, property, divorce, or a mix.
• Check whether the municipality you have in mind is a Family Court Branch location.
• If safety or removal of a child from Ontario is a concern, get legal advice quickly about starting in any municipality.
• If you and the other party want a different municipality, ask the court for permission before you file.
• Speak with a family lawyer if parents live in different cities or the child has moved recently.

Family Law Information Centres at family courts give free court forms and general information about procedure, though not legal advice.

Frequently asked questions