Family Law Trials and Court Proceedings in:
Unified Family Court
Dealing with all family law matters, including divorce, division of property, child and spousal support, custody and access.
Ontario Court of Justice
Dealing with family law disputes that fall under most Ontario legislation. Issues including, custody, access, child and spousal support.
Superior Court of Justice
Dealing with family law disputes involving divorce, division of property, child and spousal support and custody and access.
Two persons who are cohabitating or intend to cohabitate and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including ownership in or division of property, support obligations, the right to direct the education and moral training of their children, but not the right to custody of or access to their children and any other matter in the settlement of their affairs.
If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract.
Marriage Contracts (pre-nup)
Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including ownership in or division of property, support obligations, the right to direct the education and moral training of their children, but not the right to custody of or access to their children and any other matter in the settlement of their affairs.
A court in Ontario has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. A breakdown of a marriage is established if the spouses have lived separate and apart for at least one year and were living separate and apart at the commencement of the proceedings, or if one has committed adultery or treated the other spouse with physical or mental cruelty of such kind as to render intolerable the continued cohabitation of he spouses.
It is the duty of the court to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it, to satisfy itself that reasonable arrangements have been made for support of any children of the marriage, having regard to the applicable guidelines and if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made.
Two persons who cohabitated and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations including ownership in or division of property, support obligations, the right to direct the education and moral training of their children, the right to custody of and access to their children and any other matter in the settlement of their affairs.
You must ensure that there has been full financial disclosure and that the parties have had independent legal advice.
Declaration of paternity
Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the circumstances outlines in s.8(1) of the Children’s Law Reform Act.
Where there is no presumption, any person may apply to the court for a declaration that a male person is his or her father, or any male person may apply to the court for a declaration that a person is his child.
Custody / Access
Custody is the right to make important decisions about how to care for and raise a child or children. Custody is not about which parent the child lives with or how much time a child spends with each parent.
There are many different kinds of custody. Joint, shared, sole and many combinations thereof.
A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children. The factors in determining the best interest of the child are outlined in the legislation.
The merits of an application with respect to custody of or access to a child shall be determined on the basis of the best interest of the child.
A court shall only exercise its jurisdiction to make an order for custody of or access to a child where certain legislated factors are adhered to in accordance with the Children’s Law Reform Act.
Both the father and the mother of a child are equally entitled to custody of the child.
Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but no the entitlement to access, is suspended until a separation agreement or order otherwise provides.
Access is the time a child spends with a parent.
The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.
Your parenting plan is the plan for how you and the other parent will continue to care for and raise your child after you separate.
Your parenting plan should include:
- A custody and access schedule that shows when each parent spends time with the child
- Information about joint or sole custody and how parents will make decisions for the child
- Other provisions that show how the parents will divide and share responsibilities
A parenting plan can be informal and flexible where both parents address issues as they arise, or the plan can be written out in detail as part of your separation agreement or court order. Informal plans that aren't filed with the court are difficult to enforce.
If you and the other parent need some time to work out a final plan, or you are waiting for the court to decide on your plan, you can make a temporary parenting plan until you have a permanent plan.
The purpose of an order for child support is to recognize that each parent has an obligation to provide support for the child and to apportion the obligation according to the child support guidelines.
A court may, on application by either or both parents, make an interim order requiring a parent to pay for the support of any or all children on an interim basis pending the outcome of a final order with respect to child support.
The Federal Guidelines define “special or extraordinary expenses” as expenses that are:
necessary because they are in the child’s best interests; and reasonable given the means of the parents and the child and in light of the family’s spending patterns before the separation.
Special or extraordinary expenses are:
- child-care expenses that you may have to pay as a result of a job, an illness, a disability, or educational requirements for employment if your child spends most of the time with you;
- the portion of your medical and dental insurance premiums that provides coverage for your child;
- your child’s health-care needs that exceed $100 per year if the cost is not covered by insurance (for example, orthodontics, counseling, medication or eye care);
- expenses for post-secondary education;
- extraordinary expenses for your child’s primary education, secondary education or any other educational programs that meet your child’s particular needs; and
- extraordinary expenses for your child’s extracurricular activities.
It is best if you agree on which special or extraordinary expenses are reasonable and necessary in your situation. You can even include expenses like university tuition that you expect to have in the future. Keep your children’s best interests in mind.
The purpose of an order for spousal support is to recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse, to share the economic burden of child support equitably, to make fair provisions to assist the spouse to become able to contribute to his or her own support and to relieve financial hardship, if this has not been done by other orders regarding family property and the matrimonial home.
A court must look to a list of factors set out in the legislation in determination of the amount of spousal support.
A spouse seeking spousal support first has the onus to prove entitlement to spousal support.
A court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of a spouse on an interim basis pending the outcome of a final order with respect to spousal support. The court shall take into consideration the condition, means, needs and other circumstances of each spouse including a list of factors in the legislation, before making an interim order.
Imputation of Income for child and spousal support purposes
When parties with dependent children go through a separation or divorce in Ontario, child support is an important factor that both parties should put their mind towards. Not only do parents have a moral obligation to jointly support their children based on their ability, section 26.1(2) of the Divorce Act codifies this child support obligation.
Determining how much child support a parent has to pay is generally a simple calculation for a family lawyer – based on the payor parent’s gross income and the corresponding Table amount value. However, this somewhat simple task can become complicated where, for example, the payor parent is self-employed and their personal income is not accurately reflected in their income tax documents (e.g. Notice of Assessment) for family law purposes. Another example is in situations where the payor parent is purposefully under-employed or unemployed. To address these particular scenarios, section 19 of the Guidelines allows for imputing income on a parent based on their capacity.
Section 19(1) of the Guidelines sets out nine scenarios in which imputing income can occur; however, it is important to note that the courts have clearly stated that this list is not exhaustive for imputing income. Furthermore, a court is granted discretion to impute such income as it considers appropriate.
A court of competent jurisdiction may order one or both parents to provide medical benefits for their children or each other on an application.
A court of competent jurisdiction may order a support payer to maintain a life insurance policy as security for payment of support.
Equalization of Net Family Property
The purpose of the equalization of net family property between married spouses is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to equitable considerations set out in the legislation.
When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them taking into consideration excluded property and other legislated factors. The Court may also award a spouse an amount that is more or less than half of the difference between the net family properties if the court is of the opinion that equalizing the net family property would be unconscionable having regard to several factors listed in the legislation.
An application based on an equalization of net family property shall not be brought after the earliest of two years after the date of divorce or nullity of the marriage, six years after the separation date and there is no reasonable prospect of cohabitation or six months after the spouse’s death, whichever is earliest.
Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
Both spouses have an equal right to possession of a matrimonial home.
When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession is personal as against the spouse; and ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.
Despite a spouse’s equal right to possession of a matrimonial home and regardless of ownership, the court may order exclusive possession and other orders as is allowed in s.24 of the Family Law Act.
Your pension is an asset to be equalized on marriage breakdown.
Significant changes regarding valuation and settlement on marriage breakdown were introduced on January 1, 2012.
Upon request from either spouse, plan administrators must prepare a valuation of the pension benefits for marriage breakdown purposes. The valuation must be prepared in accordance with formulas set out in the new regulations.