What You Should Know about
Family Law in Ontario
How To Get A Divorce in Ontario
Staying in the family home
The following is from a booklet published by the Ministry of the
This booklet contains information about the law as it was at the
time it was written. The law can change. Check the Ministry of the
Attorney General website at
current information. This booklet does not contain legal advice or
replace the specialized advice of lawyers or other experts.
Caring for your children
Enforcing your custody and access orders
Financially supporting your children
Financially supporting your spouse
Enforcing your support payments
Dividing your property
Dividing property after the death of your husband or wife
booklet is about family law
in Ontario. It contains information about the laws that may
affect you if you separate. These issues include the care and
support of your children, support for you or your spouse/partner
and the division of your property.
(The information in this booklet with respect to
division of property and taxation of support payments may not
apply to you if you are an Indian registered under the federal
Further information is available at the back of this booklet. )
Before making important decisions, you should understand your
rights and obligations. Family law can be complicated and a
booklet cannot possibly answer all your questions or tell you
everything you need to know. There are many ways you can inform
yourself about the law and your options.
If you are separated or are thinking of separating, it is a good
idea to speak to a lawyer about your situation. A lawyer can
give you specific information about the law and tell you how it
might affect you.
Your local family court can also be a good place to go for more
information. Some courts offer parent information sessions on
issues affecting separating families. Most family courts have
Family Law Information Centres that provide a range of
information and services, including the following:
• pamphlets and other written materials on topics relevant
to separating families;
• guides to procedure;
• referrals to services in the community, such as
• information about court procedure and court forms;
• information and advice about different ways of resolving
family law disputes including mediation and going to court;
• summary advice from legal aid lawyers.
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.
These courts can deal with
family law matters, including divorce, custody, access, division
of property and child protection. These courts also have Family
Law Information Centres and offer family mediation services and
parent information sessions to the public.
In other communities, family law matters are dealt with in two
separate courts. You will need to know which one can deal with
the family law issues you need to resolve:
• If you simply want to get a divorce, or if you want to get
a divorce and ask for custody, access or support as part of
the divorce, you must go to the
Superior Court of Justice.
You must also go to this court if you want to resolve
matters related to the division of your family property.
• If you are not seeking a divorce, but only want to ask for
support, or resolve issues related to custody of or access
to your children, you could go to the Superior Court of
Justice, but you can also go to the
Ontario Court of Justice.
This court also hears child protection matters.
You and your spouse can resolve the issues between you through
private settlement, negotiation, mediation or by going to court.
This booklet provides some information about each of these
I. THINGS YOU SHOULD KNOW ABOUT
FAMILY LAW IN ONTARIO
Ontario, a couple can get married in a civil ceremony or in a
When you get married, the law treats your marriage as an equal
economic partnership. If your marriage ends, the value of the
property you acquired while you were married and the increase in the
value of property you brought into your marriage will be divided in
half: one half for you and one half for your husband or wife. There
are exceptions to this rule.
The law also provides that you and your husband or wife have an
equal right to stay in the family home. If you separate, you will
have to decide who will continue to live there.
In addition, Ontario’s family laws provide that you may be entitled
to financial support for yourself and your children when your
Couples who feel that the law does not suit the kind of relationship
they have can make other arrangements in a
Marriage contracts are very important legal documents. You should
think carefully about your decision. Speak to a lawyer and exchange
financial information before signing a marriage contract.
In a marriage contract you can say what you expect from each other
during your marriage. You can list property that you are bringing
into the marriage and say how much it is worth and who owns it. You
can say exactly how you will divide your property if your marriage
ends. You do not have to
divide your property equally. You can describe how support payments
will be made if your marriage ends. You can also make plans for the
education and religious upbringing of your children, even if they
are not yet born.
There are some things you cannot put in your marriage contract. You
cannot make promises about custody and access arrangements for your
children if your marriage breaks down. You cannot change the law
that says a wife and a husband have an equal right to live in their
We are already married and do not have a marriage contract. Now we
think it might be a good idea to have one. Is it too late?
A No, it’s not too late. You can sign a marriage contract after you
are married. Remember that it must be in writing and signed by both
of you in front of a witness who must also sign the contract. If you
write your contract yourselves, each of you should have your own
lawyer look it over before you sign it.
I am getting married in a few months. I don’t own a lot but I do
have the china set my mother got when she was married. It is worth
about $2,000. When I marry, does the china set become my husband’s
A No. The china is your property. If your marriage ends, you can keep
the china. But if the china has increased in value when your
marriage ends, you and your husband will share the increase in
If you have a marriage contract, it could say that the china is your
property and that any increase in the value of the china during your
marriage will not be shared with your husband if your marriage ends.
you live with someone
without being married, people say you are in a
common law relationship
In 1999, the Supreme Court of Canada decided that people who
live together in a same sex relationship have the same rights
and obligations as opposite sex common law couples. When this
booklet says “common law couples” it means both opposite sex
common law couples and same sex common law couples.
Common law couples do not have the same rights as married
couples to share the property they bought when they were living
together. Usually, furniture, household belongings and other
property belong to the person who bought them. Common law
couples also do not have the right to divide between them the
increase in value of the property they brought with them to the
If you have contributed to property your partner owns, you may
have a right to part of it. Unless your partner agrees to pay
you back, you will have to go to court to prove your
If your common law relationship ends, and you do not have enough
money to support yourself, you can ask your partner to pay
support. You can ask for support for yourself if you have been
living together for three years, or if you have lived together
for less time and have had or adopted a child together. If your
partner says no, you can to go to court and ask a judge to
decide if you should get support.
If you and your partner have a child together, you can ask for
support for that child. Children of parents living in a common
law relationship have the same rights to support from their
parents as the children of married couples. If your partner will
not pay support, you can to go to court and ask a judge to order
your partner to pay support for that child. The amount of
support is set under the Child Support Guidelines.
As part of a support order for you or your child, you may also
ask to stay in the home you shared when you lived together. The
judge can order this even if you do not own the home, or if your
name is not on the lease. This is different than for married
couples. Married couples automatically have an equal right to
stay in the home.
If you do not get support, you may not have the right to stay in
the home if it is not yours.
Couples in a common law relationship can sign a
to protect their rights.
A cohabitation agreement can spell out what you both want your
financial and family arrangements to be. It can say who owns the
things you buy while you are living together. It can say how
much support will be paid if the relationship ends and how your
property will be divided. It can say who has to move out of the
home if the relationship ends.
It cannot say who will have custody of, or access to, your
children if your relationship ends. You cannot decide this
before the relationship is over.
Both of you must sign a cohabitation agreement in front of a
witness for it to be legal. The witness must also sign the
agreement. Once you have signed a cohabitation agreement, you
must follow what it says. If one of you decides you don’t like
the agreement, you can negotiate a change to the agreement. Any
change must also be in writing and signed in front of a witness.
If you cannot agree, and you have now
separated, you have to go to court and ask a judge to change it.
A court will change a cohabitation agreement only in rare cases.
You should each speak to a different lawyer and exchange
financial information before signing a cohabitation agreement.
We are living together and don’t have a cohabitation agreement.
What will happen to the things we own and our savings if one of
If you die without having a will which says exactly what you
want to have happen to your property, your property will go to
your blood relatives – for instance, your children, your parents
or your brothers and sisters. To claim part of your property,
your common law partner will have to go to court to prove that
he or she helped to pay for it. This takes time and is
expensive. For these reasons, people living in a common law
relationship should each have a will that says to whom they want
their property to go if one of them dies.
When we moved in together, we went to lawyers and signed a
cohabitation agreement. We’ve decided to get married. What
happens to our cohabitation agreement?
When you get married, your cohabitation agreement becomes your
marriage contract. If you both want to change it, you can sign a
Separating and Settling the
Issues Between You
are separated when you are not living together and there is no
chance that you will live together again. When you separate,
there are many decisions that have to be made.
You will need to arrange which one of you will stay in your
home, who will pay family debts, how much support will be paid,
how you will divide your property, and who will take care of
You can resolve things in different ways.
1. You can have an informal arrangement, which can be verbal
or in writing.
2. You can agree on things and write down your decisions in
A separation agreement must be signed by both of you in
front of a witness for it to be legal. The witness must sign
the agreement too.
3. You can go to court and ask the court to decide.
It is always better if the two of you can agree on how to settle
the issues between you. Court proceedings can be very expensive
and take a long time. If you cannot come to an agreement between
you, a mediator may be able to help you to talk to each other
and reach an agreement. A lawyer can also help you to work
Signing a separation agreement is a very important step. Your
decisions now can affect you and your children for the rest of
your lives. If one of you decides you don’t like the agreement,
you can try to negotiate a new agreement. If you cannot agree
you have to go to court and ask a judge to change it. A
separation agreement is a contract that you must honour. You
should speak to a lawyer to make sure you know all of the legal
consequences of your decisions.
You have a right to complete and honest information about your
spouse/partner’s financial affairs before you make any
decisions. Do not sign anything until you are sure you have all
the information you need. Make sure that you understand what is
written down and that you agree to it.
The law leaves the decision about having a separation agreement
to you. You may have a hard time proving that you and your
spouse/partner had promised to settle things a certain way if
you do not have a written and signed separation agreement. This
could be a problem if your spouse/partner stops respecting your
It is up to you and your spouse/partner to decide the best way
to settle the issues between you. A lawyer or a mediator may be
able to help you decide what would be best for you.
I just found out that my wife did not tell me the truth about
her income when we were working on our separation agreement. It
turns out that she makes twice as much money as she said she
did. Now that I know this, I think I am paying her too much
support. What can I do?
This is one of the few situations in which you can go to court
to ask a judge to change your separation agreement. Usually a
judge will not change what a couple has agreed to in a
separation agreement. However, a judge can change the agreement
if he or she finds that a person was not honest and did not
provide accurate information about income, property or debts
when the agreement was made.
Common law couples
We have been living together without being married for 11 years
and have one child. We have a house and a car we bought together
and lots of furniture. We’re not getting along and we are
talking about splitting up. Can we write a separation agreement?
Yes. Common law couples can write and sign separation agreements
in the same way married couples can. You can include whatever
you both want in your agreement. It is important for each of you
to see different lawyers before signing the agreement.
Seeing a mediator
are usually social workers, lawyers, psychologists, or other
professionals. When these professionals work as family
mediators, their job is to listen to what you want and to help
you reach an agreement on support payments, the division of
property, custody of and access to the children, or any other
Mediators do not take sides or make decisions for you. They
cannot give you legal advice.
You should each speak to your own lawyer before you see a
mediator. You need to know the law and your rights and
obligations first, before mediation starts. Your lawyer will
usually not go to mediation with you.
Mediation is not appropriate for everyone, particularly in cases
where there has been violence or abuse. If you are afraid of, or
intimidated by, your spouse/partner, mediation may not be a good
If you feel confident that you can say what you want for
yourself and your children and that you can defend your ideas,
you may want to try mediation. It may give you a chance to
settle things with the help of a third person.
If you feel unhappy with how mediation is working out, you can
leave it at any time. A lawyer can negotiate for you instead. If
an agreement cannot be reached, you can go to court and have a
You should show any agreement you reach during mediation to a
you sign it.
If mediation doesn’t work, can the mediator tell the court what
was said during mediation?
A It depends on whether you have chosen “open” or “closed”
mediation. Before mediation starts you and your partner will
decide this issue. In
the mediator writes a full report on what happened during
mediation and can include anything that he or she thinks is
important, and that information is available to the court. In
the mediator’s report will only say what agreement you reached,
or that you did not reach an agreement.
How can I find a mediator? How do I know if a mediator is good?
A You can obtain the names of mediators through the Ontario
Association for Family Mediation. Lawyers also often know the
names of local mediators. In some communities, there are
mediation services connected to the court and fees are charged
according to your income.
At this time there is no professional licensing association for
mediators. It is up to you to ask a mediator about his or her
experience and training. If you are not satisfied, or do not
feel comfortable, look for another mediator.
Is mediation expensive?
A The cost of mediation varies. Some community groups offer
mediation services for a fee geared to your income. Private
mediators are in business for themselves and their fees can vary
Choosing a lawyer
you are looking for a lawyer to help you resolve your family law
issues, look for someone who has experience doing family law
work. You might be able to get the name of a lawyer through a
friend or relative. You can call the Lawyer Referral Service to
get the name of a lawyer who will give you one half hour of
advice for free. If your income is small, or if you are on
social assistance, you might qualify for legal aid. Legal aid
can help pay for some or all of your legal costs. The number for
the legal aid office in your community is in the telephone book.
Your lawyer can tell you about the law and can talk to you about
services in the community that might be of help to you.
The conversations you have with your lawyer are confidential.
Your lawyer cannot talk to others about what you have said
without your permission.
If you are unhappy with the way your lawyer is handling your
case, you have the right to say so. Talk it over. Your lawyer is
working for you.
After seven years of marriage, we have decided to split up.
We’ve talked about how we will divide our furniture and our
household things. We don’t have any children. Do we need to see
a lawyer anyway?
A Yes. You should each see a different lawyer. It may not seem
necessary now, but it can save you problems later. Your own
lawyer can look out for your interests, tell you about things
that you might not have thought of (like pension
rights or taxes) and make sure that you understand what you are
agreeing to before it is too late.
My husband has a good job and makes a good salary. I have been
at home for the last 10 years looking after our three kids. I
have no money for a lawyer. What can I do?
A You should call your legal aid office. You may qualify for legal
aid because you cannot afford to pay a lawyer. If you will get
money or property from your husband in the future, you may still
be able to get legal aid now on the condition that you will pay
legal aid back when you get the money from your husband.
My partner abused me. I know I should leave, but I have nowhere
to go and can’t afford to pay for a lawyer. How can I get legal
A If you have been abused, you have the right to emergency legal
services through Legal Aid Ontario. You can talk to a lawyer for
two hours for free. A women’s shelter, a legal aid office or a
community legal clinic can tell you how to get this free legal
Going to court
you and your spouse/partner cannot agree on how to settle the
issues between you, you can go to court and ask a judge to
decide for you.
Sometimes you can agree on everything except one thing, like
custody of the children or what should happen to the family
home. You can go to court and ask the court to decide that one
thing for you.
Many decisions about the children and about support may have to
be made quickly. If you cannot agree on what to do right away,
you can go to court to ask for an
interim (or temporary) order.
This order can cover things like custody of, and access to, the
children, who can stay in the family home, and how much support
should be paid.
The interim (or temporary) order will stay in effect until the
court has time to hear your case in full. The court will then
make a final decision.
In some cases, the court will schedule a
These conferences provide opportunities for you and your
spouse/partner and your lawyers, if you are represented, to meet
with a judge to discuss the issues in your case. The judge may
recommend that you see a mediator, if you have not already done
so. Sometimes, the judge will give his or her opinion on what a
judge hearing your case at a trial would likely decide. The
judge’s opinion will not decide the issues in your case.
However, it may help you to come to an agreement with your
spouse/partner. Even if you do not agree on everything, you may
be able to agree on some issues.
We cannot agree on who should have custody of our children. When
we go to court, will the children have to go too?
A The judge will want information about the needs of the children
and their relationship with each of you. Judges generally want
to avoid having children give evidence in these cases. More
likely, the judge will ask for an
An assessment is a detailed review of your family situation by a
person such as a social worker, psychologist or psychiatrist.
The person doing the assessment will usually meet with each
member of the family and sometimes with other people. He or she
will then write a report for the court which contains
recommendations on the issues of custody or access. In most
cases, you and your spouse/partner will be responsible for costs
of the assessment.
In some cases the judge may ask the
Office of the Children’s Lawyer
to to the court with recommendations. The Office of the
Children’s Lawyer may assign a social worker to conduct the
investigation. The social worker will meet with the children,
the parents and other people.
If the court feels that the children would benefit from having
their own lawyer during the court process, the court can ask the
Office of the Children’s Lawyer to provide a lawyer to represent
your children’s interests in court.
Do I need a lawyer to go to court?
A No. You can go to court without a lawyer. You will then be
responsible for completing and filing all of the appropriate
court documents. You can get some information about completing
these forms in courts where there are Family Law Information
Centres. You can also ask court staff if there are any guides to
procedure that can help you. You will also speak for yourself in
front of the judge.
Some courts have lawyers who are called advice lawyers and duty
counsel. Legal aid provides these lawyers at no cost to people
who have low incomes. Their job is to answer people’s questions
and to help the court. They may be able to give you some
information about the law. In some cases, duty counsel can also
speak to the court on your behalf and help you negotiate a
Getting a divorce
agreements and court orders resolve family matters when you
separate but they do not legally end your marriage. The only way
to do this is to get a divorce.
You can get a divorce by proving that your marriage is over. You
can prove this by showing that you have been separated for a
year, or that your husband or wife has had a sexual relationship
with another person, or that your husband or wife has been
physically or mentally cruel to you.
If you cannot agree on the terms of your divorce, you can go to
court and let the court decide. If you can agree, you can file
your agreement in court. In that case, you probably will not
have to see a judge.
When your divorce is final, you can marry again.
We’ve been living apart for five years and are happy with the
way our separation agreement is working out. I would like to get
a divorce now. Can I do the paperwork myself?
A Yes. However, it is a good idea to speak to a lawyer first to
make sure that you understand all the consequences of getting a
divorce. Your lawyer can advise you on support, tax, pension and
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Last updated on May 15, 2013