1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

The main statutes governing family law matters in Ontario are:

  • the Marriage Act;
  • the Divorce Act;
  • the Family Law Act; and
  • the Children's Law Reform Act.

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

Canada is a signatory to the Hague Convention on International Child Abduction.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

The Ontario Court of Justice and the Ontario Superior Court of Justice are the two divisions of court in Ontario which handle family law-related matters. The Ontario Court of Justice primarily deals with support and parenting issues. The Superior Court of Justice has broad authority over all matters, including property division.

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

Foreign judgments and orders can be enforced in Ontario by proceeding to the relevant judicial body (eg, the Ontario Superior Court of Justice) for recognition and enforcement. There is a common law method of enforcing by way of:

  • starting an enforcement proceeding; or
  • proceeding under legislation that permits the reciprocal enforcement of certain judgments.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

Typically, for a matter involving a divorce, a party must be resident in Ontario for 12 months preceding commencement of the divorce application. In other cases, such as parenting disputes, the jurisdiction of the court will depend on the situation and the habitual residence of the child.

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

If there are competing jurisdictions in a case, in determining whether to accept jurisdiction, the courts in Ontario will review a variety of factors, including:

  • the location of the majority of the parties in a case;
  • the location of witnesses and evidence;
  • contractual provisions between the parties that specify the applicable law or accord jurisdiction; and
  • the desire to avoid a multiplicity of proceedings.

No one factor is determinative. Rather, the court takes a holistic approach to the matter.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

Cohabiting couples are considered spouses in Ontario if they meet certain indicia such as:

  • living together for three years or longer; or
  • having a child together.

Once a spousal relationship has been established, cohabiting couples have certain support rights under the applicable provincial legislation. Same-sex couples are recognised in Canada with equal rights to opposite-sex couples, so they are protected by the same laws.

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

If a cohabiting couple has lived together for the requisite amount of time or have a child together, they have certain support rights. The rights are statutory and the couple can pursue claims under provincial laws.

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

Couples who cohabit for a certain period of time (usually a minimum of three years) are considered spouses for spousal support claims. There is no formal civil partnership declaration.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Yes. Parties to foreign civil partnerships in countries where marriage was not available to them that are both formally and functionally equivalent to marriage may be considered spouses under the Family Law Act.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

Two people who wish to marry must provide ‘free and enlightened' consent to be each other's spouses. No person under 16 years of age may marry. If a party was previously married:

  • he or she must be formally divorced prior to remarriage; or
  • his or her spouse must have died.

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

In Ontario, a common law spouse is not considered a married spouse and different rights exist depending on whether you are married or not.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

In Ontario, purely religious marriages are not recognised, except in rare circumstances in which the civil marriage requirements were not completed in error. A foreign marriage will be recognised in Canada if the marriage is legal according to the laws of the jurisdiction where it occurred.

4.4 Does a specific marital property regime apply in your jurisdiction?

Yes – equalisation, which is the sharing of the value of wealth accumulated during the marriage, with some exceptions.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

Pre- and postnuptial agreements are recognised in Ontario. The agreement need not have been entered into in Ontario.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

In order for an agreement to be valid, the agreement must be:

  • in writing;
  • executed by the parties to the agreement;
  • witnessed; and
  • dated.

Along with these formalities, the parties should exchange financial disclosure in advance of entering into the agreement. These agreements may deal with property or spousal support claims. These agreements cannot make provision with respect to the parenting or support of children.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

To the extent that a party has a residence in another jurisdiction or assets in that jurisdiction, it is always wise to consult with a lawyer in that jurisdiction, as terms agreed to in Ontario may not be enforceable in another jurisdiction.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Yes, same-sex and opposite-sex couples have equal rights and responsibilities.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

A separation agreement is different in that it encapsulates settlement terms, taking into account terms outlined in pre/postnuptial agreements. A separation agreement may consider issues (eg, parenting) which often cannot be dealt with in pre/postnuptial agreements.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

In order to divorce in Ontario, a party must have resided in Ontario for a year prior to the commencement of a divorce application.

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

Parties can proceed with a divorce based on one year of separation. Parties may also seek divorce based on cruelty and adultery; however, this is very rare.

6.3 How does the divorce process typically unfold and what is the general timeline?

An application for a divorce alone is rarely contested. It proceeds as an undefended application and takes three to four months. If the divorce is contested or the parties also make claims for parenting, support or property, the process may take over a year at least to get to trial. The parties must attend a minimum of three conferences before a judge with the objective of settling the proceeding, Interim disputes may be resolved on motion or by consent, pending a trial to resolve all issues on a final basis.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

Yes.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

No. Divorce may only be granted by a court.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Yes, foreign divorces are recognised in Ontario. To be recognised, there must have been a real and substantial connection with the jurisdiction granting the divorce at the time of the divorce. Alternatively, if either party has been ordinarily resident in the jurisdiction that granted the divorce for a year prior to the divorce taking place, that will suffice.

Once a valid divorce has been obtained in a foreign jurisdiction, the Ontario courts do not have jurisdiction to hear or determine spousal support claims.

A religious divorce on its own will not be recognised in Ontario.

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

In Ontario, a party can seek an annulment of a marriage. There are no specific ‘separation' proceedings. Rather, if a party separates, he or she can seek a divorce; but even if the party does not seek a divorce following separation, he or she still has a right to make claims with respect to property division and support.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

A divorce application must typically be served personally and a party cannot be the one to serve the application (it should be a third party). If serving on a party who lives overseas, the method of service will depend on whether the recipient of the application is in a country which is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

Depending on the level of court and the claim being advanced, the court may facilitate an initial dispute resolution meeting. The parties are typically obliged to attend a settlement conference before a judge in an effort to try to get them to settle.

7.2 Spousal and child maintenance:
  1. What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
  2. What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
  3. When do spousal and child maintenance expire?
  4. What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
  5. Which bodies are responsible for issuing child support orders in your jurisdiction?
  6. Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?
  7. Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
  8. What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
  9. What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

The courts can order periodic child support and spousal support or lump-sum spousal support (not child support). In Ontario, income-based guidelines assist in determining the support owed.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

In determining spousal support/maintenance, the court will first determine whether a party has an entitlement. Entitlement may be established as a result of any of the following bases:

  • compensatory;
  • non-compensatory (or needs-based support); or
  • contractual.

Once the entitlement threshold is met, an analysis of quantum takes place.

Factors that the court may look at in determining the issue of whether to award spousal support include:

  • the financial means and needs of both spouses;
  • the length of the marriage;
  • the roles of each spouse during the marriage;
  • the effect of those roles and the breakdown of the marriage on both spouses' current financial positions; and
  • the care of any children.

Child support is somewhat more rigid in terms of considerations and will usually be granted by right, absent a child withdrawing from parental control or some other consideration.

(c) When do spousal and child maintenance expire?

Child support is typically payable at least until a child is 18 and often longer if they proceed through post-secondary education.

Spousal support duration depends on many factors, including:

  • the length of the relationship;
  • age at separation; and
  • income.

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

Support obligations will not typically be defeated simply because a party has declared bankruptcy. In the event of death where there is no life insurance in place to secure support, an analysis will have to take place to determine the income of the estate of the payer and the ability to continue paying support in some form.

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

The Ontario Court of Justice and the Superior Court of Justice.

(f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?

If the parties are married and there is a child support obligation, the governing legislation will be the Divorce Act. If the parties are not married, the governing legislation will be the Family Law Act.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

Support is the right of the child and it is possible for a child to advance a claim for support. Instances where this might be an issue include where a parent has not made a claim for support on the part of the child, but the child requires it.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

Depending on the jurisdiction, tax advice with respect to the payment of child support (and any associated deduction) should be obtained. To the extent that a party has assets overseas, income from those assets will need to be included in a determination of income for support purposes.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

As with spousal support, the Family Responsibility Office (FRO) is tasked with the collection of support owed by a payer. The FRO may garnish income or seize assets. The FRO may remove a defaulting payer's passport or driver's licence.

7.3 Asset division:
  1. What orders can the court make in relation to the division of assets on divorce or judicial separation?
  2. What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
  3. How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
  4. Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
  5. Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
  6. Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
  7. What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
  8. If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
  9. Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?

The courts in Ontario have the authority to order:

  • property division (equalisation); and
  • the sale of property located in Ontario

Determinations of ownership (restitutionary claims) can also be determined by the Ontario courts.

(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?

Under the Family Law Act, when a married couple separates, one spouse may owe the other an equalisation payment. The first step in calculating the amount due is to determine the valuation date, which is the date of separation.

Each spouse determines his or her net family property by adding up his or her own assets and subtracting any debt he or she has as of the valuation date. If an asset – including the matrimonial home – is jointly owned, each spouse uses half its value in his or her net family property calculation. When only one spouse owns the matrimonial home, only that spouse includes it in his or her valuation date calculation.

The Family Law Act excludes some assets from the net family value. The spouse claiming the exception is responsible for proving that a particular exception applies. The exclusions include:

  • property other than a matrimonial home that a spouse received as a gift or inheritance after the marriage began;
  • damages or right to damages from settlements for personal injury, nervous shock, mental distress or loss of guidance, care and companionship;
  • money received from a life insurance policy;
  • property that can be traced back to one of the above exceptions; and
  • property excluded by a domestic contract signed by the spouses.

For property owned before the marriage, the spouses share only the increase in its value after the date of marriage. Each spouse is therefore required to calculate his or her assets and debts as of the date of marriage.

To calculate a party's net family property, each spouse subtracts his or her date of marriage assets from the value of his or her property as at the valuation date (date of separation). The difference is then divided in half, and the resulting value is the equalisation payment. The spouse with the higher net family property value pays the equalisation payment amount to the other spouse.

(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?

Parties can advance an unequal division of net family property claim if there are allegations of unreasonable conduct with respect to financial matters during the marriage.

(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?

Yes, experts are often used for a variety of issues, including valuation of property or income analysis.

(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?

A matrimonial home is given special treatment and consideration in Ontario under the Family Law Act. In calculating property division (equalisation), the value of the matrimonial home is not deducted from a spouse's net family property as a date of marriage asset as long as the property is still occupied as a family home at the date of separation. The value of the home is always included in the calculation of a party's date of separation property. Spouses have possessory rights pending divorce.

(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?

Trusts exist in Ontario. Depending on how the trust is constituted and whether the trust interest was gifted or consideration was paid, it may constitute property for the purposes of equalisation. Income and benefits received from a trust are often a factor in a determination of support.

(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?

The Family Responsibility Office (FRO) is a government agency whose role is to enforce the collection of child support and spousal support. The FRO may:

  • garnish income;
  • seize assets; or
  • take away a defaulting spouse's passport or driver's licence.

Other financial orders (eg, equalisation payments) are enforced by writs of seizure and sale and garnishment. Failure to make payments in accordance with a court order can often result in a party being unable to advance any claims at court.

(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?

Parties can settle all financial matters by separation agreement. There is no need to proceed to court. Typically, parties through counsel will negotiate a separation agreement. The parties must exchange comprehensive financial disclosure. Any separation agreement must be in writing, signed and witnessed.

(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

The courts in Ontario have the authority to make mirror orders to ensure compliance with a foreign order related to a divorce. However, once a foreign divorce has been obtained, no party can obtain spousal support under Ontario or Canadian legislation.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

In Canada, the terms ‘custody' and ‘access' are no longer used. Parenting orders for decision-making replace ‘custody' and contact or residency replace ‘access'. Courts will primarily look to the child's best interests when making decision-making responsibility and contact orders. Factors that the court will consider include:

  • the child's views and preferences (depending on the child's age);
  • each parent's willingness to support the development and maintenance of the child's relationship with the other parent;
  • plans for the child's care; and
  • each parent's ability and willingness to care for the child and meet his or her needs.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

Both unmarried couples and same-sex couples are afforded similar rights to married couples in relation to children. There is no differentiation between ‘legitimate' and ‘illegitimate' children.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

Depending on the type of case and claim being advanced, the court will facilitate dispute resolution meetings. Furthermore, all matters typically end up at a settlement conference before a trial.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

Social workers or psychologists are often privately retained by the parties to conduct assessments. The Office of the Children's Lawyer is also an entity which is used by parties to assist children in cases involving parenting issues.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

As with all other issues, the main factor determining what, if any, requirements and restrictions apply to the removal of a child from Ontario is the best interests of the child. A child cannot be removed from the province without:

  • the consent of both parents; or
  • a court order.

8.6 What regime applies to the international abduction of children in your jurisdiction?

Canada is a signatory to the Hague Convention on International Child Abduction.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

In Canada, the Assisted Human Reproduction Act regulates surrogacy. All surrogacy in Canada must be altruistic, in that a surrogate cannot receive payment – although she can be reimbursed for certain expenses.

9.2 Are surrogacy arrangements legal in your jurisdiction?

Parties are permitted to contract to have a surrogate assist them.

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

Yes, parties will be considered parents to a child born through a surrogate. They will need to ensure they are recorded on the child's birth certificate.

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

The Child and Family Services Act governs adoption. Before a party adopts a child, it is advisable that they seek legal advice with respect to their obligations to support a child who is adopted.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Yes. Same-sex and opposite-sex couples have the same rights and responsibilities.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

Parties may submit any family law dispute to mediation, arbitration or combined medication/arbitration.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

Power dynamics are often an important consideration before parties enter into mediation. To the extent that the parties are arbitrating, they should be made aware of the impact and finality of entering into this process, including that arbitral awards can be turned into orders of the court in Ontario.

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

It is important to consider whether the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters will apply. It is always important to obtain proper tax advice when a foreign party is involved.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

Most courts in Ontario have procedures to allow parties to move forward with urgent hearings. At those hearings, depending on the situation, they may ask for restraining orders or other methods to ensure the safety of all parties and their children (if any).

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

No.

11.3 How are these orders enforced and by whom?

The orders are often enforced by the police.

11.4 How soon will the party's application be dealt with in these circumstances?

Depending on the circumstances, it may only take a few days to arrive at a conference (if not sooner).

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

Child protection proceedings can be initiated and orders can be made to remove a child or children from the care of a parent.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Recent amendments to the Divorce Act have modernised parenting laws to expressly require courts to consider family violence.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

Where possible, parties should always try to approach the end of a relationship and the issues that may arise from a problem-solving viewpoint. Mediation can be an effective way to manage family disputes. The courts are backlogged and if the parties want an efficient and effective solution to their issues, they will have to try to work together to settle their differences.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.