Family law in Canada: Ontario: overview
A Q&A guide to family law in Canada: Ontario.
The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
To compare answers across multiple jurisdictions visit the Family Country Q&A tool.
This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.
Family Law was published in association with the International Academy of Matrimonial Lawyers.
For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.
Jurisdiction and conflict of law
Sources of law
Canada is made up of:
Prince Edward Island;
Both the federal and provincial governments have jurisdiction over family law (sections 91 and 92, Constitution Act, 1867 R.S.C. 1985, App II., No. 5):
The federal government presides over matters of marriage and divorce.
The provincial government has jurisdiction over the solemnisation of marriage and property and civil rights.
Custody, child support and spousal support generally fall within the ambit of provincial legislation. However, where those issues arise in connection with a divorce, there is jurisdiction for them to be considered under federal legislation.
The Divorce Act (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)) is federal legislation which governs divorce and corollary relief including custody, child support and spousal support for all of Canada's provinces and territories. In Ontario, the Family Law Act (Family Law Act, R.S.O. 1990, c. F.3, as amended) (FLA), specifically Part I, sets out the method by which property is to be divided following the breakdown of marriage. Child and spousal support obligations are included in Part III of the FLA, while child custody is prescribed by the Children's Law Reform Act, R.S.O. 1990, c. C.12, as amended (CLRA).
In Ontario, there are three different courts that deal with family law. In some communities, family law matters are dealt with by the Family Court of the Superior Court of Justice (sometimes referred to as the unified Family Court). These courts can deal with all family law matters, including divorce, custody, access, division of property, adoption and child protection.
There are 17 Family Court of the Superior Court of Justice locations in Ontario (Barrie, Bracebridge, Brockville, Cobourg, Cornwall, Hamilton, Kingston, L'Orignal, Lindsay, London, Napanee, Newmarket, Oshawa/Whitby, Ottawa, Perth, Peterborough, and St. Catharines).
In other communities, like Toronto, family law matters are dealt with in two separate courts:
The Superior Court of Justice. The Superior Court of Justice has jurisdiction over:
requests for divorce only;
requests for divorce and custody, access or support as part of the divorce request; and
matters related to the division of family property.
The Ontario Court of Justice. The Ontario Court of Justice has jurisdiction over:
requests related to support custody or access;
child protection matters.
All court hearings are to be open to the public (section 135, Courts of Justice Act, R.S.O. 1990, c C.43). However, a court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.
Family law matters can also be dealt with through private settlement, negotiation, collaborative family law, mediation or arbitration, rather than going to court.
A court in a province has jurisdiction over divorce proceedings if either spouse has been "ordinarily resident" in the province for at least one year immediately preceding the commencement of the proceedings (section 3(1), Divorce Act). Ordinary residence is a question of fact to be determined in the particular circumstances (see Question 3, Divorce).
Since the Ontario Family Law Act (FLA) does not address the issue of jurisdiction directly, the common law "real and substantial connection" test is used to determine whether the Ontario courts have jurisdiction (Wang v Lin 2013 CarswellOnt 530 (Ont. C.A.) and Knowles v Lindstrom 2014 CarswellOnt 1675 (Ont. C.A.)).
Ontario's FLA provides that property rights of spouses are governed by the internal law of the place where both spouses had their last common "habitual residence," or by the laws of Ontario if there was no common habitual residence (section 15, Family Law Act). For the definition of habitual residence, see Question 3, Children.
Where custody and support are requested separately from divorce, those claims can be heard by a court in a province where either former spouse is ordinarily resident at the commencement of the proceedings or in a province where both former spouses accept the jurisdiction of the court (section 4(1), Divorce Act).
Where custody proceedings are instituted outside of divorce, the court in Ontario can only exercise jurisdiction in two circumstances (section 22(1), Children's Law Reform Act):
Where the child is habitually resident in Ontario at the commencement of the application.
Where the child is not habitually resident in Ontario but the court is satisfied that:
the child is physically present in Ontario at the commencement of the application;
substantial evidence concerning the best interests of the child is available in Ontario;
no application for custody or access is pending in a place where the child is habitually resident;
no extra-provincial order in respect of custody or access has been recognised by a court in Ontario;
the child has a real and substantial connection with Ontario; and
on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Support for a child may be made outside of divorce proceedings by a parent if the child is under 18 and in school (section 31, Family Law Act).
Domicile and habitual residence
A spouse must have been "ordinarily resident" in a province for at least one year immediately preceding the commencement of the proceedings (Divorce Act). As "ordinarily resident" is not defined within the Divorce Act, it is a question of fact determined on the specific circumstances.
Under the Divorce Act, a court has jurisdiction as long as either of the former spouses is ordinarily resident in the province at the commencement of the proceedings or both accept the jurisdiction of a particular province's court. Under the Family Law Act, an Ontario court has jurisdiction to deal with property if the parties have no "last common habitual residence". The term "last common habitual residence" refers to the place where the spouses most recently lived together and participated together in family life (Adam v Adam  O.J. No. 1930 (Ont. Gen. Div.); affd  O.J. No. 3266 (Ont.C.A.)).
There are presumptive child support tables and child support is payable pursuant to relevant Child Support Guidelines in the province where the paying spouse resides. If the spouse against whom an order is sought resides outside Canada, but the other spouse and child reside in Canada, a court may take jurisdiction under conflict of laws rules (Federal Child Support Guidelines, SOR/97-175, as amended, s. 3(3)).
Habitual residence of a child is defined as the place where the child last resided either with (section 22(2), Children's Law Reform Act):
(Where the parents live separately) one parent under a separation agreement or with the consent, implied consent or acquiescence of the other under a court order.
With a person other than a parent on a permanent basis for a significant period of time.
A parent cannot change the habitual residence of the child by removing or withholding the child without the consent of the parent having custody of the child (section 22(3), Children's Law Reform Act).
Conflict of law
In the case of divorce and corollary relief, a party seeking a stay of domestic proceedings must be able to establish that the foreign court is clearly or distinctly a more appropriate forum (Kornberg v Kornberg  M.J. No. 659, 30 R.F.L. (3d) 238 (Man. C.A.)). Where the corollary relief will need to be dealt with by the foreign court, severing the divorce from the corollary relief is not appropriate (Struck v Struck,  O.J. No. 2808, 56 R.F.L. (6th) 224 (Ont. S.C.J.)).
Where a stay of proceedings in favour of a foreign court is sought under provincial legislation in respect of custody, an Ontario court will, unless there are exceptional circumstances, refrain from exercising jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal in the place where the child has a closer connection (section 19(b), Children's Law Reform Act).
Some factors to consider in family law cases when determining forum issues are (Jenkins v. Jenkins,  O.J. No. 1631 at paras. 21 and 22, 8 R.F.L. (5th) 96 (Ont. S.C.J.); Dumont v. Dumont,  A.J. No. 1464, 2009 ABQB 764 (Alta. Q.B.)):
Family ties that will provide witnesses.
The location of any assets.
Any juridical advantage or disadvantage.
Where each party resides or carries on business.
Geographical factors suggesting a natural forum.
The fact that one party was first to launch formal court proceedings is not determinative of the issue; it is simply one factor to be considered on a balance of convenience (Smithers v. Smithers,  O.J. No. 5552 at para. 27 (Ont. S.C.J.); Kornberg v. Kornberg,  M.J. No. 659, 76 D.L.R. (4th) 379 (Man. C.A.)). Even if one party has accepted the jurisdiction of a Canadian court, that does not determine the issue of which is the more convenient forum, especially where custody and access issues are involved (Cheng v. Liu,  O.J. No. 1557, 2010 ONSC 2221 (Ont. S.C.J.)).
Pre- and post-nuptial agreements
Validity of pre- and post-nuptial agreements
In Ontario, pre-and post-nuptial agreements are referred to as marriage contracts. To be valid, a marriage contract must be:
Signed by the parties.
Married couples, or those intending to marry, can make agreements dealing with any matter. However, terms purporting to deal with custody of or access to a child or limiting a spouse's right to possession of the matrimonial home, are unenforceable (section 52, Family Law Act).
Marriage contracts, along with other domestic contracts such as separation agreements, are binding on the parties.
A court can set aside an agreement or a provision in it if (section 56(4), Family Law Act):
One party failed to disclose to the other, significant assets or debts existing at the time the contract was made.
A party did not understand the nature or consequences of the contract.
It is otherwise in accordance with the law of contract.
Setting aside a contract or a provision is essentially a two-step process:
The party seeking to set aside the contract must be able to show that they fit within one of the above criteria.
The court makes a discretionary decision based on the facts (Quinn v Keiper,  O.J. No. 4169 (Ont. S.C.J.), affirmed  O.J. No. 3788 (Ont.C.A.)).
In LeVan v LeVan the Ontario Court of Appeal agreed with the trial judge and set aside a marriage contract on the basis that (LeVan v LeVan,  O.J. No. 1905 (Ont. C.A.), leave to appeal refused  S.C.C.A. No. 331 (S.C.C.)):
The husband had deliberately breached his statutory obligation to provide financial disclosure.
Neither the wife nor her lawyer understood the nature and consequences of the marriage contract.
The husband's leave to appeal to the Supreme Court of Canada was denied.
The findings in LeVan and other cases make it abundantly clear that for a marriage contract to survive judicial oversight, there must be sufficient financial disclosure for the other party to know the:
Rights he or she is releasing.
Potential amounts at stake.
The onus is on both the spouse with the assets or income to disclose, as well as on the other spouse to seek to compel further disclosure if he or she is not satisfied with what has been provided. Marriage contracts must be negotiated and signed well in advance of the wedding date to avoid a claim of duress. The parties must also consider the need for independent legal advice.
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
The formalities of a marriage are determined by the law of the place where the marriage takes place. An Ontario court can inform itself of the law in a foreign jurisdiction to determine whether to annul a foreign marriage (section 3, Annulment of Marriages Act (Ontario) R.S.C. 1970, c. A-14; Torfenejad v Salimi,  O.J. No. 4633 (Ont. S.C.J.), affd  O. J. No. 3165 (Ont. C.A.)).
Foreign divorces are recognised in Canada under the following three possible bases (section 22, Divorce Act):
Where either spouse was "ordinarily resident" in that country for at least one year immediately preceding the commencement of proceedings for the divorce (see Question 3, Divorce).
The foreign divorce was obtained after 1 July 1968 based on the wife's domicile in a country other than Canada as if she were an unmarried adult.
The foreign divorce was granted under common law if properly obtained in accordance with the laws of the other country (Martinez v Basail,  O/J/ No. 1432 (Ont. S.C.J.))
Same-sex couples who enter into a civil union that is different from but equivalent to marriage in another country where same-sex marriage is not legal will be considered to be married under Canadian law (Hincks v. Gallardo,  O.J. No. 69, 2013 ONSC 129 (Ont. S.C.J.)).
Canada is a "no fault" jurisdiction which means that the reason the marriage is at an end is irrelevant to determinations of custody, access and support. Where there has been a breakdown of the marriage, a court can grant a divorce. Breakdown of a marriage is established on two possible bases (section 8, Divorce Act):
If the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceedings. To be living "separate and apart" requires only the intention of one spouse. While it does require a physical separation, spouses can live separate and apart under the same roof.
The spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty such that continued cohabitation is intolerable. Although adultery is still included in the Divorce Act, it is rarely invoked today for the following reasons:
it is expensive, onerous, and time consuming to make a successful claim;
the courts are critical of spouses who claim marriage breakdown-based adultery. They are seen as unnecessarily trying to embarrass their former spouse and the person with whom the alleged adultery was committed;
although a divorce cannot be granted until the spouses have been living separate and apart for one year, a claim may be commenced as soon as the spouses are separated, making that ground far more practical.
To establish cruelty, the conduct must be of a "grave and weighty" nature. The conduct cannot be simply a manifestation of incompatible temperaments between the spouses (Knoll v Knoll,  O.J. No. 1443).
As a divorce can be obtained based on one year of separation, actions in nullity are not particularly common (Chirayath v Chirayath,  O.J. No. 262 (Ont. C.A.)). Where the parties both reside in a province, a court in that province can deal with a claim for annulment (Torfenejad v Salimi,  O.J. No. 4633 (Ont. S.C.J.), affd  O. J. No. 3165 (Ont. C.A.)). Grounds for an annulment may be based on lack of formalities or lack of capacity to marry (pages 144-145, Halsbury's Laws Of Canada, First Edition, LexisNexis Inc., 2010; Marriage (Prohibited Degrees) Act S.C. 1990, c. 46).
It is not possible to file for judicial separation in Ontario. Parties are legally separated as soon as they are living separately without reasonable prospects of resuming cohabitation (Family Law Act).
Finances/capital and property
A court in Ontario can require one spouse to pay child support in accordance with the applicable guidelines (see Question 10). In the order, the court can impose terms, conditions, or restrictions as it deems fit and just (section 15.1, Divorce Act). The court can also order a spouse to pay spousal support (section 15.2, Divorce Act). For more information on how spousal support is calculated, see Question 9.
In Ontario, only married spouses are entitled to a division of property (sections 1 and 5, Family Law Act). Common law spouses can still make claims for property, but only on the basis of common law trust principles, which may also be available to married spouses in rare circumstances (Rawluk v Rawluk 1990 CarswellOnt 217 (S.C.C.)and Martin v Sansone 2014 ONCA 14). For more information on changing trust law principles in the family law context, see Question 22.
Courts in Ontario do not have jurisdiction to divide property in specie. All property acquired by the spouses during the marriage must be equalised at separation by the transfer of money from the spouse who, during the marriage, accumulated more and, at separation, owns property with a greater value, to the other spouse.
Factors relevant to the exercise of the courts powers under the equalisation model (see Question 8) include:
The property in issue is that owned by the spouses on the valuation date. The valuation date is defined as "the date of separation, the date of divorce or a declaration of nullity, the day before the date of the death of a spouse or the date of commencement of an application for improvident depletion" (section 4, Family Law Act).
The court must determine each spouse's net family property (defined as the value of all the property a spouse owns at separation after deducting the spouse's debts and liabilities and the value of property, other than a matrimonial home, that the spouse owned on the date of marriage). There is also provision for the exclusion of the value of certain property from a spouse's net family property calculation.
A spouse's net family property cannot be less than zero.
The spouse whose net family property is the lesser of the two is entitled to 50% of the difference between them. Essentially, the spouse with the larger "ownership pile" pays money to the spouse with the smaller "ownership pile" to ensure that they leave the marriage with assets, whether property or money, of equal value (Rawluk v Rawluk 1990 CarswellOnt 217 (S.C.C.)).
The court also retains some limited discretion to order an unequal division where it would otherwise be unconscionable (sections 4 and 5, Family Law Act). Unconscionable means more than unfair or inequitable; it must "shock the conscience of the court" (Ward v Ward 2012 CarswellOnt 8658 (Ont. C.A.)).
In 1990, the Supreme Court of Canada considered the division of property and set out a two-step test, which distinguishes between (Rawluk v Rawluk 1990 Carswell Ont 217 (S.C.C.)):
Ownership. This is far more than a share in the property; it includes additional legal rights, control and responsibility as well as psychological benefit.
Equalisation. The spouses' assets are equalised. Each spouse's assets are equalised based on the value of each asset at the valuation date (see Question 9), not the date of trial. Therefore, if a non-titled spouse has made contributions to a property which has increased in value after the date of valuation, that spouse would not be entitled to share in the increase.
In Rawluk, the Supreme Court of Canada made it clear that "ownership" includes beneficial ownership which allows the non-titled spouse to make a claim for a constructive trust interest in the property.
However more recently, the Ontario Court of Appeal has held that in the vast majority of cases, any unjust enrichment that arises as a result of the marriage will be fully addressed by the equalisation provisions of the Family Law Act (see Martin v Sansome, 2014 ONCA 14, paras 46-67 and McNamee v McNamee, 2011 ONCA 533 at para 66).
In Serra v Serra (Serra v Serra,  O.J. No. 432 (Ont. C.A.)), the Ontario Court of Appeal considered the situation where, after separation, the husband suffered a substantial decline in the value of his business, the major asset, as a result of market factors and had been prevented from disposing of this asset by an interlocutory order. Equalisation was determined on the value of each spouse's property on valuation date. By the time the amount of the payment was calculated, it was actually more than (possibly even double) the husband's net worth. The court found that equalisation would be unconscionable and instead ordered an unequal division.
The definition of a spouse's "net family property" refers to the value of property after deducting debts and liabilities. The Family Law Act was revised (effective 14 May 2009) to expressly include contingent tax liabilities in respect of property (section 4(1.1), Family Law Act).
Where maintenance, or spousal support as it is known in Canada, is requested as part of a divorce, a court must consider the condition, means, needs and other circumstances of each spouse, including:
The length of time the spouses cohabited (not just the length of the marriage).
The functions performed by each spouse during cohabitation.
Any order, agreement or arrangement related to the support of either spouse.
The objectives of a spousal support order are to (section 15.2, Divorce Act):
Recognise the economic advantages or disadvantages to the spouses arising from the marriage or its breakdown.
Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage.
Relieve economic hardship of the spouses arising from the breakdown of the marriage.
In so far as is practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Under Ontario legislation, spousal support is available to (section 29, Family Law Act):
Common law couples: those who have lived together continuously for at least three years.
The parents of a child who are in a relationship of some permanence.
The purposes under the Family Law Act are similar to those set out under the Divorce Act.
Generally, spousal support is more likely to be awarded the:
Longer the spouses have cohabited.
Larger the discrepancy between their incomes.
Closer the relationship resembles the "traditional" relationship where one spouse worked outside the home while the other was responsible for the home and the children.
Before a court will order spousal support, an applicant must establish entitlement to support. In Bracklow v Bracklow  S.C.J. No. 14, the Supreme Court of Canada set out the three possible bases for entitlement:
Where the basis is compensatory in nature, a spouse will have established his or her inability to support him or herself as a result of foregoing education or career opportunities during the marriage in favour of the other spouse's education and/or career goals. Where a spouse has taken on the more traditional roles of child-rearing and household management, a compensatory basis may be found.
A contractual basis is established where the spouses have an express or implied agreement about the provision of support or conversely an express or implied agreement about the lack of spousal support.
Where there are no grounds for compensatory support, but a spouse is unable as a result of the marriage or its breakdown to be self-sufficient, non-compensatory spousal support may be established.
Miglin v Miglin  S.C.J. No. 21 was a seminal case in which the Supreme Court of Canada established a two-stage process for setting aside a waiver of spousal support in an agreement:
At the first stage of the two-stage process, the court must:
examine the circumstances at the time of the formation of the agreement, determine whether there were any circumstances of pressure and examine the conditions under which the negotiations were held, including whether there was professional assistance;
look to the substance of the agreement and determine the extent to which the agreement takes into account the factors and objectives listed in the Divorce Act. The court only intervenes if there has been a significant departure from the Divorce Act.
At the second stage, the court considers the current circumstances to determine whether the agreement continues to be an accurate reflection of the parties' intentions.
The Ontario Court of Appeal's decision in Fisher v Fisher 2008 ONCA 11 (Ont. C.A.) came as a surprise to many at the family law bar. After a 19-year marriage where the parties had no children, the court restricted the wife's support to a maximum of seven years. The decision marked a departure from the court's previous practice of ordering indefinite support on the breakdown of long-term marriages. The Court of Appeal found that the wife's claim was essentially non-compensatory in nature and ordered time-limited, transitional support to allow her to adjust to the lifestyle her income allowed. The decision was also significant because of the court's acknowledgement that the Spousal Support Advisory Guidelines (SSAGs), although only advisory in nature and not binding, are useful.
The SSAGs use an income-sharing model of support, rather than one based on budgets, in an effort to bring consistency and predictability to the amount of spousal support to be ordered. The SSAGs are supposed to apply to incomes with a "ceiling", where the income of the payor exceeds CAD$350,000 and a "floor", where the income of the payor is less than CAD$20,000 per year. It should be noted that the SSAGs do not address the issue of entitlement which is a separate legal issue (described above) that must be addressed before the quantum of support is determined.
In the 2011 decision of Davis v Crawford 2011 ONCA 294 (Ont. C.A.), the Ontario Court of Appeal reviewed the trial judge's decision to award lump sum spousal support. While the court disagreed that lump sum support is to be used only in "very unusual circumstances", it did note that for practical reasons most spousal support would be ordered to be made periodically. Ultimately, lump sum spousal support was ordered as there was a real concern the husband would not pay periodic support.
Since 1 May 1997, child support in Ontario has been calculated in accordance with the Federal Child Support Guidelines (Guidelines). The amount of support is based on the income of the payor and the number of children living with the recipient parent. The Guidelines are grids that provide a specific amount of support to be paid for every income level, above a minimum threshold income of CAD$9,000, depending on the number of children for whom support is paid (Table amount). Section 4 of the Guidelines mandates a different approach when income exceeds CAD$150,000. However, in practice the Table amounts, which are presumptive, are generally applied for incomes up to CAD$1 Million. Table child support accounts for the payor's contribution to the costs incurred by the recipient parent for the children's:
In addition to the Table amount, many payors must contribute to the children's special or extraordinary expenses, such as:
Extracurricular and health-related expenses.
Both parents must contribute to these special expenses in proportion to their respective incomes.
Reciprocal enforcement of financial orders
The Interjurisdictional Support Orders Act, 2002 53 (ISOA) governs the enforcement of support orders both where the recipient lives in Ontario but the payor lives elsewhere and where the payor lives in Ontario but the recipient lives in a different jurisdiction.
Under Part III of the ISOA, a claimant can register a support order made in a reciprocating jurisdiction for enforcement in Ontario.
The process involves the following steps (ISOA, Part III):
A copy of the order, along with information about the payor living in Ontario is sent to the designated authority in Ontario.
The court clerk in the court closest to where the payor lives registers the order, which has the same effect as though it had been made by an Ontario court.
The payor receives notice and then has 30 days to bring a motion to an Ontario court to have the registration set aside. This is only granted if:
the payor did not have notice or an opportunity to participate in the proceedings in which the order was made;
the order is contrary to public policy in Ontario; or
the court that made the order did not have jurisdiction to make it.
The order is filed with the Director of the Family Responsibility Office (FRO).
The FRO can garnish funds directly from the payor's employment wages to satisfy the order.
Where a payor is in arrears of support, the FRO has a number of additional enforcement mechanisms available, including (Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended):
garnishing federal money owed to the payor such as income tax refunds;
suspending a payor's driver's licence;
revoking his passport; or
in extreme cases, the payor's imprisonment.
Financial relief after foreign divorce proceedings
Under the federal Divorce Act, following a foreign divorce, the Ontario courts (Okmyansky v Okmyansky,  O.J. No. 2298 (Ont. C.A.); Rothgeisser v Rothgeisser,  O. J. No. 33 (Ont. C.A.)):
Have no power to vary the terms of the foreign divorce or make an order for support and custody.
Have no power to order spousal support.
In respect of provincial legislation:
Parents must support each unmarried child who is a minor (under 18) and enrolled in a full-time programme of education (section 31, Family Law Act).
An order for custody of a child can be brought by a former spouse and determined by an Ontario court under the Children's Law Reform Act if the court has jurisdiction under section 22.
The court can make an order for equalisation (Okmyansky v Okmyansky,  O.J. No. 2298 (Ont. C.A.)).
Custody refers to decision-making authority with respect to the child, specifically over issues relating to:
Non-emergency medical decisions.
Under the Divorce Act
Either or both spouses can apply for custody of a child following the breakdown of a marriage. The court must consider only the best interests of the child. The willingness of the person making an application for custody to facilitate the child's contact with the other parent is a factor for the court to take into consideration (section 16, Divorce Act).
Under the Children's Law Reform Act
While never actually defining the term "custody", the provincial legislation in Ontario explicitly provides that both parents are equally entitled to custody of the child, but where the parties separate and the child lives with one of them with the consent or acquiescence of the other, the entitlement of the parent with whom the child does not live is suspended until a separation agreement or court order provides for custody.
The parent with custody, or both parents where custody is jointly held, must exercise their rights and responsibilities in respect of the child in accordance with the child's best interests (section 20, Children's Law Reform Act).
Under the Divorce Act
A parent who is granted access has the right to information about the health, education and welfare of the child. Courts must give effect to the principle of maximum contact which provides that a child should have as much contact with each spouse as possible, so long as such contact is in the child's best interest (section 16, Divorce Act).
Under the Children's Law Reform Act
Where a child lives with one parent after separation, the other parent continues to have entitlement to access to the child, including the right to visit with the child and to ask and be provided with information about the health, education and welfare of the child (section 20, Children's Law Reform Act).
Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Part III of the Children's Law Reform Act (CLRA), which provides for custody, access and guardianship of children, was drafted specifically to deter forum shopping and child abduction. One of the stated purposes of the CLRA is to discourage child abduction (section, 19(c)). At section 46, the Hague Convention has been incorporated into Canadian law.
The CLRA also clearly and unequivocally confirms that a child's habitual residence, for the purpose of establishing a court's jurisdiction, cannot be changed by the removal or withholding of a child without the consent of the person having custody (section 22(3), CLRA).
Ontario courts have discretion to accept jurisdiction in respect of custody of, or access to, a child where either the child is (section 23, CLRA):
Physically present in Ontario and the court believes that the child would suffer serious harm if the child remains in the custody of the person legally entitled to custody.
Returned to the custody of the person legally entitled to custody.
Removed from the province.
Leave to remove/applications to take a child out of the jurisdiction
In Ontario, removal of a child from a jurisdiction is generally referred to as "mobility rights" and was considered by the Supreme Court of Canada in Gordon v Goertz, 19 R.F L. (4th) 177 (S.C.C.). While the best interest of the child is the paramount consideration, a court hearing a mobility application will consider:
Existing custody and access arrangements.
The child's relationship with each parent.
The goal of maximising the child's contact with both parents.
Views of the child.
The custodial parent's reason for moving.
Disruption to the child.
As mobility cases are so fact driven, it is extremely difficult for family law lawyers to predict whether a court will grant the request for a move in any specific situation.
A parent can apply under any circumstances but will only be successful if he or she can persuade the court that:
There has been a material change of circumstances necessitating the move. Section 17 of the Divorce Act does not specifically refer to the change being "material" but it has been read into the section by the common law in Willick v Willick,  S.C.J. No. 94, (S.C.C.). Section 29 of the Children's Law Reform Act includes the phrase "material change in circumstances".
The best interest of the child will be met by permitting the move.
Surrogacy and adoption
Surrogacy, along with other assisted reproductive technologies, is in a state of flux in Canada.
The Assisted Human Reproduction Act S.C. 2004, c. 2 (AHRA), a federal piece of legislation, came into force on 22 April 2004. However, by 2010, a number of its provisions had been repealed, having been deemed unconstitutional by the Supreme Court of Canada (Reference re Assisted Human Reproduction Act, 2010 SCC). While the AHRA acknowledges surrogacy, it prohibits payment:
To a surrogate.
For arranging for the services of a surrogate.
The AHRA permits surrogates to be reimbursed for expenses "in accordance with the regulations" but these regulations have yet to be drafted. There are, to date, no reported Canadian cases dealing with the enforceability of surrogacy agreements. However, in February 2013, the Royal Canadian Mounted Police, Canada's national police service, laid 27 criminal charges against an Ontario surrogacy agent and her firm.
In Ontario, all individuals, including married and unmarried heterosexual and same-sex couples are potential adoptive parents. Adoption has been codified in the Child and Family Services Act (R.S.O. 1990, c. C.11, as amended at Part VII) (CFSA) where the primary objective is the best interest of the child.
Individuals must undergo a home study comprised of a series of interviews in which the practitioner:
Assesses the adoptive parents' skills and ability to parent.
Prepares a report for approval.
The CFSA also provides for openness agreements whereby birth parents, and other specified persons, can negotiate the terms of the agreement prior to the finalisation of the adoption (section 153.6, CFSA).
There is no legislation in Ontario governing the division of property for unmarried couples on the breakdown of the relationship. Before the Supreme Court of Canada's 2011 decision in Kerr v Baranow, 2011 CarswellBC 240 (S.C.C.), common law couples, in making a claim to property held by the other spouse, invoked various trust principles, including the resulting trust and constructive trust.
In Kerr v Baranow, the Supreme Court of Canada:
Made it clear that the resulting trust, and its concomitant "common intention" of the parties no longer has any role to play.
Determined, where an unjust enrichment claim is made, the manner in which a monetary remedy is to be quantified in a domestic situation and expressly rejected the fee-for-service calculation.
Held that "where the unjust enrichment is best characterised as an unjust retention of a disproportionate share of assets accumulated during the course of… a 'joint family venture' to which both partners have contributed, the monetary remedy should reflect that". Factors which point to the existence of a joint family venture include:
actual intent; and
priority of the family.
Family dispute resolution
Mediation, collaborative law and arbitration
Alternative dispute resolution processes, including mediation, arbitration and collaborative law, are available in Ontario for parties who choose to opt out of the court system. A hybrid of mediation and arbitration, known as Med/Arb, has been voluntarily used by litigants for a number of years. In a Med/Arb process the parties choose one person, generally a well-respected senior family law lawyer, to act first as mediator, and failing resolution, as arbitrator.
The agreement becomes a domestic contract (Part IV, Family Law Act) where agreement is:
Reached through mediation or the collaborative law process.
In writing, signed by the parties and witnessed.
Under section 31 of the Children's Law Reform Act and section 3 of the Family Law Act, parties can request that the court order the appointment of the person the parties have chosen, and who has agreed to act as mediator.
Family arbitrations, agreements and awards are governed by both the:
Family Law Act.
Arbitration Act 1991 (S.O. 2006, c. 1, s.5)
Where there is a conflict between the two pieces of legislation, the Family Law Act prevails (section 59.1, Family Law Act).
The provisions in respect of family arbitrations, agreements and awards were added to the Family Law Act by the Family Statute Law Amendment Act 2006 S.O. 2006, c. 1 which came into force in Ontario on 30 April 2007. The legislation provides that:
Arbitrations are to be guided by the laws of Ontario or another jurisdiction within Canada.
Parties must have independent legal advice prior to entering into an arbitration agreement.
Where a separation agreement, court order, or arbitration award requires parties to engage in a particular process before the institution of proceedings, the court will generally enforce those provisions.
There is currently no requirement that parties attempt family dispute resolution in advance of the institution of proceedings, although parties are free to do so. In Ontario, there is a Family Law Information Centre located at most courthouses. There are court connected family mediation services at 17 separate court house locations across the province (see Ministry of the Attorney General (Ontario), www.attorneygeneral.jus.gov.on.ca/english/family/family_justice_services).
Once proceedings have been instituted, all family law litigants must:
Attend a Family Law Information Session.
As a first step in the proceedings, participate in a case conference: an early opportunity to sit with a judge in an informal setting to get a judge's view of the merits of the case.
Civil partnership/same-sex marriage
Same-sex marriage is legal in all Canadian provinces and territories. Pursuant to the 2005 Civil Marriage Act S.C. 2005, c.33, same-sex couples across Canada are entitled to equal access to marriage. The preamble to the Act makes it clear that only marriage, as opposed to some other civil union, offers same-sex couples equal access and ensures their human dignity.
Controversial areas and reform
Pensions division. Pension law in Ontario underwent a major change with the Family Statute Law Amendment Act 2009 S.O. 2009, c. 11 (effective 1 January 2012). The value of a pension is an asset to be included in the calculation of a spouse's net family property. For a spouse who has worked for many years and contributed to a pension, that pension can be of significant value. The recent pension reforms are meant to address two significant challenges faced by separating spouses:
Before January 2012, pensions were valued by actuaries, only some of whom specialised in valuation of pensions in the family law context, in circumstances where there was no specific formula required to be followed. From 1 January 2012, pension plans registered in Ontario are valued by the plan administrators in accordance with a prescribed formula. For other plans, the calculation will continue to be made by independent valuators but they must value the pension in accordance with the same prescribed formula.
The legislation was designed to deal with the difficulty faced by many pension-holding spouses who owed a significant equalisation payment to the other spouse (as a result of the large value of the pension) but who were unable to satisfy the equalisation amount without access to the funds held in the pension (until retirement when the pension was to be paid) or who had to transfer assets to the non-pension holding spouse to satisfy the equalisation obligation, leaving the pension-owning spouse with little but the future income stream from the pension at retirement. Effective from January 2012, the pension-holding spouse can transfer up to 50% of the pension value to a registered investment vehicle in the non-pension-holding spouse's name to satisfy an equalisation payment.
Currently, the manner chosen by the parties to complete a transfer of a portion of a pension plan member's pension may determine whether or not the transfer attracts interest. Sections 30(4) and (5) of Ontario Regulation 287/11 made under the Pensions Benefits Act (PBA) requires that the imputed value of pension benefits be updated to reflect interest accumulated from the family law valuation date to the beginning of the month in which the lump sum is transferred. However, there is no provision under the PBA or its regulations providing for a lump sum expressed as a specified amount to be updated on account of interest. As a result, where the court order provides for the transfer of a lump sum expressed as a specified amount, as in this case, interest is not payable unless the court order expressly requires this. In Heringer v Heringer, 2014 ONSC 7291 the court declined to order that interest be paid on a settlement payment payable by the husband to the wife by means of transfer of a portion of his pension. The decision is under appeal.
Although the pension reform has streamlined the process and has provided some relief, it has also created a host of additional challenges for separating spouses, family law lawyers and the courts. As a result of the Supreme Court of Canada's decision in Kerr v Baranow (see Question 23), and the introduction of the concept of a joint family venture, it is possible the constructive trust claim has been expanded. It remains to be seen whether married spouses can make more successful claims to a constructive trust interest in property which has increased in value since separation. Additionally, although constructive trust principles are not applicable to property gifted to the other spouse, the Supreme Court's decision may have opened that door.
The Ontario Court of Appeal's decisions in Martin v Sansome and McNamee v. McNamee (see Question 10) suggest that in most cases, an equalisation payment will be sufficient to satisfy an unjust enrichment claim between married spouses.
Summary judgment motions. Rule 20.04(2) of the Rules of Civil Procedure states that the Court will grant summary judgment if there is no genuine issue requiring a trial to a claim or defence. This language is similar to that used in Rule 16(6) of the Family Law Rules. However, in 2010 the Rules of Civil Procedure were amended, as set out in Rule 20.04(2.1), which expanded the powers of the Court on a motion for summary judgment. Under the amended Rule 20 the summary motion judge may weigh evidence, evaluate credibility and draw reasonable inferences from the evidence. Rule 16 of the Family Law Rules is in the process but has not yet been amended to grant the expanded powers to a judge hearing a summary motion. A number of Superior Court decisions have held that Rule 16 should be interpreted to include the expanded powers stipulated in Rule 20.04(2.1) including Steine v Steine, 2010 ONSC 4289 (CanLII) 91 R.F.L. 693 (Ont. SCJ),Children's Aid Society of Ottawa v B.(C.) 2010 ONSC 6961 (CanLII);  O.J. No. 5644, Duncan v Duncan 2012 ONSC 4331 (CanLII), 2012 ONSC 4331 (Ont. S.C.J.), and Abdollahpour v Banifatemi, 2014 ONSC 7273 (Ont. S.C.J.).
Controversial areas of law
There are two main areas which are controversial:
The laws surrounding assisted reproductive technologies are arguably most out-of-step with the reality of the way in which families are formed. It has been reported that the Ontario surrogacy agent facing criminal charges under the Assisted Human Reproduction Act S.C. 2004, c. 2 (AHRA), will challenge the constitutionality of some of its remaining provisions (Article by Tom Blackwell in The National Post, 17 March 2013, http://news.nationalpost.com/2013/03/17/business-has-boomed-canadian-surrogacy-agent-facing-27-charges-continues-her-controversial-work). Regardless of whether a challenge of constitutionality of the AHRA is successful, further change in the law of assisted reproductive technologies is required.
A change in the law would be welcome with respect to the equity in a home brought into marriage. In calculating a spouse's net family property under the Family Law Act (FLA), there is a deduction given for all property a spouse has brought into the marriage, with the exception of the equity in a home that the parties use as a matrimonial home (or where the proceeds of a home owned at date of marriage are used to purchase a matrimonial home). The FLA provides a matrimonial home with special protection. At the time the FLA was drafted, there was a great deal of debate about this specific issue as many felt it was simply unfair for the spouse who brought a home, as opposed to any other asset, into the marriage, to lose the deduction for it on separation. Currently, the only way for a spouse who owns a home at marriage to protect the equity of that home (or one into which the equity is transferred), is to enter into an agreement with their spouse in which it is agreed that in the event of marriage breakdown, the equity in the home on the date of marriage will be deducted from the home-owning spouse's net family property. Given the rate of divorce, the fact that people are now marrying later in life, and that many have already purchased a home by the time they enter marriage, legislative reform is advisable.
Canadian Legal Information Institute (CanLII)
Description. This website provides up-to-date access to court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions. Decisions from the Supreme Court of Canada and Federal Statutes are provided in both French and English.
Ontario Ministry of the Attorney General
Description. The Family Law section provides general information about laws that may affect persons who separate or divorce from their spouses, a directory of legal resources, referral sources, a list of books and websites for adults and children covering separation and divorce, parenting, emotional and financial issues, a guide to procedures in family court, and links to various family law legislation and Family Law Rules Forms. The website and resources are available in English and French.
Law Society of Upper Canada
Description. The "For Lawyers" section includes "Lawyer Practice Area Resources" that include step-by-step "How To" guides for preparing an uncontested divorce by simple application; conducting an interview to prepare a separation agreement; preparing an answer; preparing a financial statement; bringing a family law motion for a temporary order in the Superior Court of Justice, and preparing for a case conference in the Superior Court of Justice.
Family Law Office of Legal Aid Ontario
Description. This website provides information on legal aid services available to low-income individuals. The website is available in both French and English.
Esther Lenkinski, Founding Partner
Lenkinski Family Law & Mediation Professional Corporation
Professional qualifications. Honours Arts Program, University of Toronto, 1970; Bachelor of Laws, Osgoode Hall Law School, 1973; called to the Ontario Bar, 1975; Harvard Mediation Program, 1998.
Areas of practice
- Specialist for over 30 years in family law and estates litigation.
- Successfully advocated at all levels of court, in mediations and arbitrations.
- Acts as mediator and arbitrator for family law disputes.
- Offers assistance in the negotiation of marriage contracts and separation agreements.
- Counsel in numerous landmark decisions that have been at the forefront of interpreting family legislation.
- Continues to advocate for law reforms to reflect evolving family law issues in Canadian society.
- Named a "Lawyer's Lawyer" by the Canadian Lawyer.
- Argued successfully in the Court of Appeal that a California court should have jurisdiction over a child custody dispute involving a new mother who moved to California when she was seven months pregnant: Dovigi v Razi 2012 ONCA 36.
- Argued successfully for a modest order for temporary support, despite the high income of the payor, based on the family's lifestyle prior to separation: Sirdevan v Sirdevan, 2010 ONSC 2375.
- Argued successfully in the Court of Appeal, that new amendments to sections 15, 15.3 and 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended, gave the court the jurisdiction to vary a dismissal of a support order: Tierney-Hynes v. Hynes, (2005), 75 OR (3d) 737 (CA).
Languages. English and Polish
- Senior member of the Family Law Bar in Toronto.
- Member of the Law Society of Upper Canada.
- Ontario Bar Association, Family Law Division.
- Advocates' Society.
- Association of Family and Conciliation Courts.
- Former President of the Canadian Chapter of the International Academy of Matrimonial Lawyers, an international peer-reviewed organisation.
- The Ontario Family Law Practice Guide, contributing author.
- Halsbury's Laws of Canada, Family Law Section, co-author.
- Presented numerous papers and written several articles in the field of family law, that have been published by both national and international bodies.
Alexandra Carr, Associate
Lenkinski Family Law & Mediation Professional Corporation
Professional qualifications. Honours Bachelor of Science, Queen's University, 2004; Bachelor of Laws, University of Western Ontario, 2008; called to the Ontario Bar, 2009.
Areas of practice
- Developing a broad practice in family law and estates litigation.
- Offers assistance in the negotiation of marriage contracts and separation agreements.
- Co-counsel on a trial at the Super Court of Justice involving a dispute over a variation of child support, January 2015.
- Co-counsel for the Elliot Lake Mall Action Committee at the Elliot Lake Public Inquiry, 2013.
Languages. English and French
- Member of the Law Society of Upper Canada.
- Ontario Bar Association.
- Advocates' Society.