Ontario Family Law — Divorce Act, Property Division, and Support

The Divorce Act — Jurisdiction and Grounds

The Divorce Act RSC 1985 c 3 (2nd Supp) (as amended in 2021) is federal legislation governing divorce and corollary relief (child support, spousal support, parenting orders). It applies to married spouses. Provincial legislation — primarily the Family Law Act RSO 1990 c F.3 — governs property division and applies to both married and common-law spouses in property matters. Family law proceedings in Ontario are governed by the Family Law Rules O. Reg. 114/99.

The sole ground for divorce in Canada is marriage breakdown (s.8 DA), established by one of:

• Separation of one year — the parties have lived separate and apart for at least one year immediately before the determination of the divorce (s.8(2)(a)); proceedings may be commenced before the one year expires
• Adultery — the respondent committed adultery after the marriage; the petitioner cannot use their own adultery (s.8(2)(b)(i))
• Physical or mental cruelty — the respondent treated the petitioner with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses (s.8(2)(b)(ii))

The 2021 amendments to the Divorce Act (Bill C-78) replaced "custody" and "access" with "decision-making responsibility" and "parenting time" — Parliament moved to child-focused language emphasizing the child's best interests.

Parenting Orders — Best Interests of the Child

Section 16 of the Divorce Act (as amended) requires the court to consider only the best interests of the child in making parenting orders. The primary consideration is the child's physical, emotional, and psychological safety, security, and well-being (s.16(1)). Section 16(3) lists factors to consider including:

• The child's needs, given their age and developmental stage
• The nature and strength of the child's relationship with each spouse and other significant persons
• Each spouse's willingness to support the child's relationship with the other spouse
• Any family violence and its impact on the child and the ability and willingness of the perpetrator to meet the child's needs (s.16(3)(j))
• Any civil or criminal proceeding relevant to the safety or well-being of the child

Family violence is expressly addressed in s.16(4) — in assessing family violence, the court considers the nature, seriousness, and frequency of the violence; whether there is a pattern; and the steps taken to address the violence. A maximum contact presumption (now called "maximum parenting time") does not apply as an absolute rule where family violence is a factor.

Child Support — Federal Child Support Guidelines

Child support under the Divorce Act is governed by the Federal Child Support GuidelinesSOR/97-175 (FCSG). The FCSG establish a formulaic calculation based on the paying parent's income and the number of children:

• Table amounts — set out in schedules to the FCSG; the paying parent's gross annual income and province of residence determine the monthly table amount
• Section 7 expenses — the court may order payment of a portion of "special and extraordinary expenses" (child care, medical/dental, extracurricular activities, post-secondary education) in proportion to each parent's income
• Shared parenting arrangements — where a parent exercises parenting time with the child 40% of the time or more over a year (s.9 FCSG), the court must consider the table amounts for both households, the increased costs of shared parenting, and the condition, means, needs, and other circumstances of the child and each spouse

Child support is always subject to variation on a material change in circumstances. Income must be disclosed annually under Form 13 (Financial Statement) and the table amount updated. Courts have consistently held that child support is the right of the child — a parent cannot waive child support on behalf of the child.

Spousal Support — Divorce Act and SSAG

Spousal support entitlement under s.15.2 of the Divorce Act is based on compensatory (economic disadvantage arising from the marriage or its breakdown) and non-compensatory (need/means/economic self-sufficiency) grounds. The objectives of spousal support under s.15.2(6) include:

• Recognition of economic advantages and disadvantages arising from the marriage
• Apportionment of consequences of child care beyond the marriage
• Relief of economic hardship from the breakdown
• Promotion of economic self-sufficiency within a reasonable period

The Spousal Support Advisory Guidelines (SSAG) — developed by Carol Rogerson and Rollie Thompson and judicially endorsed in Moge v Moge [1992] 3 SCR 813 andBracklow v Bracklow [1999] 1 SCR 420 — provide ranges for quantum and duration. The SSAG use formulas based on income disparity (without children formula; with children formula). They are advisory, not binding, but courts apply them as a strong starting point.

Property Division — Family Law Act

Equalization of Net Family Property (NFP)

The Family Law Act RSO 1990 c F.3 Part I governs division of property for married spouses. The regime does not split property — it equalizes the increase in net worth during the marriage. Each spouse calculates their Net Family Property (NFP):

• NFP = (Value of property owned on valuation date) − (Value of debts and liabilities on valuation date) − (Value of property owned on date of marriage, net of debts on that date)

The valuation date is the earliest of: the date of separation with no reasonable prospect of resuming cohabitation; the date of divorce; the date of death; or the date that the court grants an equalization under s.5(6) because it would be unconscionable to equalize fully.

The spouse with the higher NFP owes the other an equalization payment equal to half the difference between the two NFPs: Equalization payment = (Higher NFP − Lower NFP) ÷ 2.

Exclusions from NFP

Certain property is excluded from NFP under s.4(2) of the FLA and does not form part of the calculation: gifts and inheritances received during the marriage from third parties (but income from gifts/inheritances is not excluded); damages or compensation for personal injury; proceeds of life insurance; and property that the spouses have agreed to exclude by domestic contract.

The Matrimonial Home

The matrimonial home has special treatment under Part II of the FLA. A spouse may not dispose of or encumber an interest in a matrimonial home without the other spouse's consent (s.21). The matrimonial home is not excluded from NFP even if one spouse received it as a gift or inheritance — its full value on the valuation date is included (s.4(1)(a) exclusion does not apply to the matrimonial home).

Both spouses have an equal right to possession of the matrimonial home regardless of ownership (s.19). An exclusive possession order may be granted to one spouse under s.24 in appropriate circumstances (best interests of children; financial need; domestic violence).

Common-Law Spouses and Property

The FLA equalization regime does not apply to common-law spouses — only to married spouses. Common-law spouses must pursue property claims under the law of unjust enrichment (Kerr v Baranow 2011 SCC 10 — joint family venture analysis; constructive trust as remedy). Common-law spouses may apply for spousal support under s.29 of the FLA if they have cohabited continuously for at least 3 years or in a relationship of some permanence with a child.

Domestic Contracts

The FLA recognizes three types of domestic contracts: marriage contracts (s.52), cohabitation agreements (s.53), and separation agreements (s.54). Domestic contracts must be in writing, signed by the parties, and witnessed. Independent legal advice is not required by statute but is strongly recommended to rebut claims of unconscionability or lack of understanding.

Section 56(4) allows a court to set aside a domestic contract on the grounds of: failure to disclose significant assets or liabilities; failure to understand the nature and consequences of the contract; or other grounds that would invalidate a contract (duress, undue influence, unconscionability). LeVan v LeVan 2008 ONCA 388 is the leading Ontario case on setting aside marriage contracts for non-disclosure.