In Ontario, family law encompasses several areas, including marriage, cohabitation, separation, divorce, property division, parenting, adoption, custody, domestic violence, spousal support, child support and enforcing support. The legal system encourages working with your partner to come to an agreement whenever possible. You might also work with family justice services, an agency that can help you resolve issues outside of court.
These laws vary by province across Canada, so contact a lawyer in your province to determine how the laws apply to you.
Ontario Courts Dealing with Family Law
Three separate courts in the province address family law: Family Court, the Superior Court of Justice and the Ontario Court of Justice. The Family Court handles all family law matters. The Superior Court of Justice oversees divorces, custody and property division. The Ontario Court of Justice handles adoption, child custody, access to a child, child support and protection of the child.
The law states that you and your spouse are equal partners when you marry. If the union ends, any property acquired while married and any increase in value to property acquired before the marriage will be equally divided between the two of you. However, some exceptions to the law can impact property division. A marriage contract can address some aspects of the marriage but cannot include issues related to custody or negate equal access to the family home.
If you cohabitate and the relationship ends, you do not have the same rights to property that married couples enjoy. Instead, each party takes the property that they brought to the marriage. If you contributed to the value of property owned by your spouse, you might be entitled to compensation. You might have the right to support if you have lived together for at least three years or if you have a biological or adopted child together. Your right to stay in the home will depend on a decision from the judge. You can protect yourself through a cohabitation agreement, which is similar to a marriage contract.
You also have the right to child support whether you were married or cohabiting if you have a child in common. The government has specific guidelines and tools to help you determine the correct amount of spousal support or child support when appropriate.
As a couple, you can address the terms of separation through the following:
- an informal agreement, either in writing or verbal
- A separation agreement, written and signed by both of you and signed by a witness
- An arbitrator or a mediator
- A lawyer to draft a separation agreement
- A lawyer who understands collaborative family law or
- A ruling from the court.
It’s best to resolve these matters between yourselves unless your partner is violent.
A mediator — a professional, such as a lawyer, social worker or psychologist — cannot give legal advice. They listen to you and help you determine what is best for your situation. Seek legal counsel before talking to a mediator. An arbitrator is a lawyer, former judge or psychologist who helps make decisions for both parties. These individuals do have the power to make binding decisions.
You can get a divorce once your marriage has legally ended:
- If you have lived apart for more than 12 months
- If your spouse was involved sexually with another person or
- If your spouse was mentally or physically cruel.
A lawyer will provide you with relevant counsel on taxes, pension, support matters and related issues.
While you should try to work out custody issues on your own, that might not always be possible. In those cases, a judge might make a decision and will consider the best interests of the children. The following definitions will help you understand custody matters:
- Custody – Custody determines who the children live with and who makes decisions about their welfare.
- Joint custody – Both parents share equal custody and decision-making powers.
- Access – Except in rare cases, you can spend time with your children even if you do not have custody.
- Supervised access – You might have supervised visits with your children if the courts determine that safety is an issue.
The courts will enforce access and custody if needed.
Financial Responsibility for Children
Both parents have a legal obligation to support the children financially. Child Support Guidelines of the Family Law Act set starting points to determine these amounts. If the child is biologically yours, you will be held responsible for the child even if you never lived together. In some cases, step parents also need to pay child support for non-biological children.
Spousal support means that the partner with more money might have to support the other person. However, the courts expect adults to take care of themselves as much as possible. The law takes many factors into account, including:
- Employment opportunities
- Contributions made to the household and family
- Contributions made to the other person’s career and
- Several other factors.
In some cases, common-law spouses have the right to support as well.
Domestic violence against your spouse is a serious crime in Ontario. The law specifically prohibits physical and sexual abuse, but mental, emotional, financial and psychological abuse is also considered domestic violence. Victims have the right to seek help for themselves and their children.
If your spouse faces criminal charges, you can receive notifications about the progress of the case. The Victim/Witness Assistance Program will also work with you. You might be assigned a Family Court Support Worker to help you through the court process.
Specific details regarding all family law matters can affect what you receive in a separation. Consult a Clearway lawyer to be sure that your rights are protected.