BARRISTER - THE FAMILY COURT SYSTEM FOR ONTARIO
Supreme Court of Canada
Ontario Court of Appeal
- can hear appeals from final orders of SCJ where amount in issue exceeds
$50K -- no leave required -- must be heard expeditiously (ie. w/in 3
months)
The Lower Courts of Ontario
Superior Court Of Justice
-deals with property, divorce, custody and access, child
support and spousal support.
-does NOT deal with child protection or adoption
proceedings
-Initiation of proceedings: when Application filed – whether
court date is set depends on whether standard track (divorce
or property claims) or fast track (all other issues)
- any claims other than divorce (and costs) or
incorporation of terms of an agreement/ prior court
Session (FIS)
-
to change
a final order re: parenting or financial issues, first
step is Dispute Resolution Officer (DRO) hearing
-hears appeals from OCJ
-hears appeals from arbitration agreements
- appeals: go to Court of Appeal or to Divisional Court
- Order final + >$50k = ONCA (no leave required)
- Order final + <$50k = Div Court (no leave required)
- Temp. Order = Div Court (leave required)
Divisional Court
-can hear appeals from
final orders of SCJ
where amount in issue
less than $50K w/o
leave
-can hear appeal from
temporary order, leave
required
Ontario Court of Justice
-deals with issues of
custody and access, child
support, spousal support,
child protection and
adoption
- does NOT deal with
divorce or property issues
-Initiation of proceedings:
when application filed – first
court date before a court
clerk called the First
Appearance Court (FAC)
-appeals: Single judge on
the SCJ (no permission from
court required)
Family Law Rules apply
and govern proceedings
Family Court of SCJ
(where this exists, it is to be used instead of the SCJ or OCJ)
- deals with ALL aspects of family law
- not available everywhere
- mediation, resource informational and legal services
attached to each court site.
- Initiation of Proceedings: when Application filed – whether
court date is set depends on whether standard track (divorce
or property claims) or fast track (all other issues)
- hears appeals from arbitration agreements
- Appeals: Uses the SCJ guidelines
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JURISDICTIONAL ISSUES
Parts of the FLA:
- Part I: Property rights – ch. 52, pg. 507
- not applicable to CL couples (whether same sex or not) -- Walsh v Bona, CL couples have
no statutory property rights
- CL options available based on resulting and constructive trust (must show “joint family
venture”), but should avoid equalization. Instead, based on unjust enrichment– see pg.
525(LR)
- equalization of property under FLA applies to registered Indians under Indian Act (does
not apply to Inuit, Metis or non-status Indians) -- applies to assets that do not consist of
interests in reserve land (pg. 595)
- FLA does not apply to dividing ownership/possession of on-reserve real property,
including matrimonial home, because this is within federal jurisdiction (pg. 595)
- Part II: Matrimonial Home -- ch. 52, pg. 512
- not applicable to CL couples (whether same sex or not)
- CL: If a joint family venture, might get partition and sale based on trust doctrines – pg.
525(R)
red Indians under Indian Act because this is within federal
jurisdiction -FHRMIRA addresses this gap; allows Indigenous people to make laws about use of
and disposition, and possession of family homes. Otherwise, “provisional” rules apply
(pg. 595)
- Part III: Spousal Support (ch. 54, pg. 521) & Child Support (ch. 53, pg. 515) – applies to
both married couples and CL couples who meet the definition of “spouse” under both
Divorce Act (divorced spouses) and FLA (married and CL)-- NB: married couples must go
under DA once divorced)
- Part IV: Domestic Agreements (ch. 60, pg. 575) – applies to both CL (cohabitation and
paternity agreements) and married couples (marriage contracts and separation
agreements).
TWO PROCEEDINGS COMMENCED (ch. 50, pg. 494)
Divorce/corollary relief/variation proceedings started on DIFFERENT days in DIFFERENT courts
(and first proceeding is not discontinued w/in 30 days = first proceeding has exclusive jurisdiction
Bill C-78 new rule: drops requirement about first proceeding not being dropped w/in 30
days. Allows second proceeding to proceed where it is the better proceeding
Divorce/corollary relief/variation proceedings started on SAME day in DIFFERENT provinces =
Federal Court has jurisdiction (unless one of the proceedings is discontinued w/in 30 days)
Bill C-78 changes: limits Federal Court’s authority to jurisdiction only and extends time to
discontinue a proceeding to 40 days
DIVORCE (ch. 50, pg. 493)
Types of Proceedings under the Divorce Act
Divorce Proceedings:
- What it is: either or both spouses seek a divorce alone or together with a child support
order, spousal support order or custody order (C-78 Amendments: “custody order”
becoming “parenting order”)
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-
Jurisdiction: either spouse has been ordinarily resident in the province for at least one year
immediately preceding the commencement of the proceeding: s. 3(1)
Corollary Relief Proceedings:
- What it is: either or both former spouses seek a child support order, spousal support order
or a custody order (C-78 Amendments: “custody order” becoming “parenting order”)
o
allows parties to divorce at an earlier stage and deal with corollary issues later
- Jurisdiction: either former spouse is ordinarily resident in the province at the
commencement of the proceeding OR both former spouses accept the jurisdiction of the
court: s. 4(1)
- Limitations: (Okmyansky)
o an Ontario court does not have jurisdiction to hear and determine a corollary relief
proceeding under the DA following a valid divorce in a foreign jurisdiction
o an Ontario court does not have jurisdiction under the FLA to hear and determine a
support claim made by a former spouse
o an Ontario court does have jurisdiction under FLA to hear and determine an
equalization claim following a valid divorce in a foreign jurisdiction
Variation Proceedings:
- What it is: either or both former spouses seek a variation order (s. 2(1)), varying, rescinding
or suspending, prospectively or retrospectively, a support or custody order or any provision
thereof (s. 17(1)) (C-78 Amendments: “custody order” becoming “parenting order”)
- Jurisdiction: either former spouse is ordinarily resident in the province at the
commencement of the proceeding OR both former spouses accept the jurisdiction of the
court: s. 5(1)
NB: Federal vs. Provincial Jurisdiction
- passage of federal Divorce Act rendered provincial legislation ineffective insofar as it covers
the same matter as the federal legislation (paramountcy)
- where a divorce proceeding is commenced and an outstanding application for support (FLA s.
36(1)) or custody and access (CLRA s. 27) has not been adjudicated, there will be a stay of
proceedings
- final order under FLA or CLRA does not preclude the making of a temporary order under DA
even when the application for divorce is filed
- BUT automatic stay has been lifted in some cases under the doctrine of express contradiction
(provincial law can be invoked so long as it does not directly contradict or conflict with the
operation of federal law)
Splitting of Divorce Claims (pg. 496)
- Family Law Rules allow for splitting a divorce claim from all other claims in the case if (a)
neither spouse will be disadvantaged by the order and (b) reasonable arrangements have
been made for the support of the children (Family Law Rules r. 12(6); DA s. 11(1)(b))
- bring request in the form of a motion for summary judgement under Rule 16
CUSTODY & ACCESS (ch. 51, pg. 499)
1) Divorce Act: applies where parents are married and seeking a divorce OR where a divorce has
already been granted
- Jurisdiction: a provincial court has jurisdiction under the DA…
o Divorce Proceedings: if either spouse has been ordinarily resident in the province for
at least one year immediately preceding the commencement of the proceeding (s.
3(1))
o Corollary Relief Proceeding: if either former spouse is ordinarily resident in the
province at the commencement of the proceeding OR if both former spouses accept
the jurisdiction of the court (s. 4(1))
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-
o Generally: if child of the marriage is most substantially connected to another
province, proceedings may be transferred on application (s. 6)
o NB: Hague Convention provides that custody and access determinations (C-78:
“parenting orders”) occur in the jurisdiction in which a child is habitually resident
Who may apply:
o By Right: spouse or former spouse
o With Leave: another person may make an application with leave of the court (s.
16(3))
2) CLRA: applies to non-married parents or those who are not seeking divorce
- Jurisdiction: an Ontario court has jurisdiction under the CLRA if
(a) a child is habitually resident in Ontario (s. 22(1)(a))
(b) a child is not habitually resident but
 the child is physically in Ontario at the commencement of the application
 substantial evidence concerning the best interests of the child is available in
Ontario
 no application for C/A is pending before a court of another jurisdiction where the
child is resident
 no extra-provincial order has been recognized by an Ontario court
 the child has a real and substantial connection to Ontario; AND
 on the balance of convenience it is appropriate to exercise jurisdiction in Ontario
(s. 22(1)(b)
- Who may apply:
o a parent of a child or any other person may apply as of right (s. 21)
Transferring a divorce/corollary relief/variation proceeding that INVOLVES a custody order:
Bill C-78 change: If child is “habitually resident” in another province the court may (on
application or its own motion) transfer the proceeding to a court in that other province (ss.
6(1)-(2))
NB re Child Protection: Child, Youth and Family Services Act, 2017 (CYFSA) came into force in
2018 and the previous legislation, the Child and Family Services Act (CFSA) was repealed (ch. 62,
pg. 585)
- raised the age of protection from 16 to 18 (see pg. 585 - 1)
- Consolidates the rights of children and young persons in various sections of the CFSA into
Part II and provides for additional legislated rights
- Repeals the old language of “Indian” and “native person” that was contained in the CFSA, and
children may now self-identify as First Nations, Inuit, and Metis and may identify with more
than one band or community.
- orders take priority over custody orders (see pg. 593 - 2.19)
CHILD SUPPORT (ch. 53, pg. 515)
1) Divorce Act + Federal Child Support Guidelines
- Application: where parents are divorcing or have divorced, child support application is
determined under s. 15.1 of the Divorce Act by applying the federal Guidelines
- Who may apply:
o a parent who is a married spouse or a former married spouse (ss. 15.1(1), 17)
- Who is covered:
o a “child of the marriage” (s. 2(1)):
 child who is under the age of majority and has not w/drawn from the parents’
charge,
OR
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
-
-
child who is over the age of majority but unable because of illness, disability or
other cause (i.e. post-secondary education) to withdraw their charge
Where to apply:
o parent may seek child support in a province in which that parent has resided for one
year as part of a divorce proceeding (s. 3(1))
o a former spouse may make a child support application in a province in which the
former spouse is ordinarily resident at the start of the proceeding OR if both spouses
accept the court’s jurisdiction (s. 4(1)(b))
NB: Divorce Act restricts eligibility to
NB: a parent can include a spouse or former spouse who stands in the place of a parent
based on an objective test (s. 2(2)) - see pg. 515 - 3.1.2 for factors considered
2) FLA + Ontario Child Support Guidelines
- Application: where parents are not divorcing or were not married, child support application is
determined under s. 33 of the FLA by applying the Guidelines
- Who may apply:
o a parent or dependent child (s. 33(2))
o a government agency providing benefits for a child or in receipt of an application to
provide benefits for a child (s. 33(3))
- Who is covered:
o A child includes “a person to whom a parent has shown a settled intention to treat as
a child of his or her family (objective test based on conduct) - see pg. 515
- NB: Restrictions to eligibility is currently the same under both the DA and FLA (Coates v
Watson) – previous eligibility outlined in s. 31 of FLA (that restricted child support to an
unmarried child who is a minor OR is enrolled in full-time education and, if over the age of
16, has not withdrawn from parental control) was found to be discriminatory.
NB re Indians:
- Child support is available under both the federal Divorce Act and the FLA for registered Indians
under the Indian Act, but see pg. 596 s. 4 re: application of s. 19 of the Guidelines on grossing up
income
- see also pg. 596 – c. 5 re: exemption from garnishment or seizure in enforcement of support
orders
SPOUSAL SUPPORT (ch. 54, pg. 521)
NB: married spouses may apply under DA or FLA prior to divorce; CL can apply under FLA only,
married must go under DA once divorced
1) Divorce Act
- Who may apply:
o a married spouse or a divorced spouse
o spouse is defined as either of two persons who are married to each other, includes
former spouse (s. 2) -- NOT CL
- Where to apply:
o SCJ (s. 2(1))
o Family Court where available
- When to apply:
o during divorce - as part of divorce proceedings, court can grant both interim and
permanent support
o in corollary relief proceeding following divorce (because spouse includes former
spouse)
o no limitation period
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- NB: spousal misconduct relating to the marriage is not an appropriate consideration in making
a spousal support order (s. 15.2(5))
2) FLA
- Who may apply:
o a spouse
o spouse is defined as
 either of two persons who are married to each other or have entered into a
marriage that is voidable or void in good faith (MARRIED);
 either of two persons who are not married and have cohabited continuously
for a period of at least three years in a conjugal relationship (COHABIT AT
LEAST THREE YEARS - see ch. 55 re: cohabitation); pg. 525 and
 either of two persons who are not married but who are in a relationship of
some permanence if they are the natural or adoptive parents of a child
(CHILD)
o not available if parties have been granted a divorce
- Where to apply:
o OCJ (limited - can’t hear applications under Part I or Part II of FLA)
o SCJ
o Family Court where available
- When to apply:
o for married spouses, bring application prior to divorce (after divorce, must go under
DA)
o no limitation period, general limitation period does not apply
- NB: spousal misconduct may be considered in FLA, but only in rare cases in which conduct is
so unconscionable as to constitute an obvious and gross repudiation of the relationship (s.
33(10))
SPOUSAL SUPPORT PARAMOUNTCY ISSUES
- NB: if one party commences an application for a divorce, claims spousal support under the
Divorce Act after FLA proceedings have been commenced but before the court has
adjudicated the claim, FLA claim is automatically stayed (FLA s. 36(1))
- NB: where a support agreement is worked out under FLA and subsequently a divorce is
granted, no need to re-adjudicate if everyone is happy with the pre-existing order; though
Divorce Act proceedings do present a chance to revisit the order if one spouse is unhappy
with current arrangement
- NB: if after FLA proceeding started a party brings an application for a divorce alone without
joining a claim for spousal support, both claims may proceed; federal paramountcy not
engaged if neither party claims support under DA
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