The following is intended to provide general information about family law in Canada. Each province and territory has their own family law legislation and case law which is updated and changed from time to time. It is your responsibility to familiarize yourself with your jurisdiction’s current laws, rules and terminology. See Section 17 Resources for your province or territory.
Family law covers many different topics but this handbook primarily focuses on separation and divorce, child and spousal/partner support, and parenting after separation. It does not cover every area of family law or child welfare cases. Note that Section 15 Family Violence may be relevant to why you are seeking court assistance – if so, refer to it first.
- 2.1 Changes Ahead
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If you are going through a separation or divorce, your family may be experiencing a lot of changes. It is important to consider how these changes will impact you and your children (if you have any).
Some of the changes you may face are:
- Living arrangements: You may need to move or sell the family home.
- Finances: You may switch from a two-income household to a one income household. Managing your personal finances may be new to you.
- Parenting: If you have children you will need to parent across two homes. How will you share the responsibilities of caring for your children?
- Lifestyle: It may take some time to adjust to the end of your relationship. The things you do and the people you see may change.
Going through a family restructuring may mean going to court. Often, however, the parenting and financial issues of separation can be dealt with without going to court. Going to court can be challenging. Going to court on a family matter can be even more difficult. Dealing with the emotional, financial and legal changes takes patience and strength. You may not know what to expect, what to do, or how you are going to get through it. It is important to understand the road ahead, before you begin the journey.
Establishing Expectations
The separation or divorce process may be a long journey. If you are expecting the process to be easy or quick, you are setting yourself up for disappointment. People are often surprised to find out how time consuming the process can be. These are important life decisions you are going to be dealing with, so expect them to take some time to settle. It might take a lot of patience, flexibility, and hard work to reach an agreement. Remember that despite the difficulties, most couples still manage to separate without ever going to trial.
It is going to be emotional. Feeling angry, frustrated, sad, and resentful is normal. Try to be aware of your emotions and if you are feeling like you are overwhelmed, take steps to get help. Do not be afraid of reaching out to those closest to you for support. It is okay to feel these feelings and you do not have to go through the process alone.
- 2.2 Legal Framework
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In Canada, there are several laws that deal with family law issues.
The Divorce Act
The Divorce Act is the federal law which sets out the rules for ending a marriage and applies only to people who are legally married. It includes rules for divorce, arrangements for children, child support and spousal support.
Provincial / Territorial Family Law Legislation
At the same time, each province and territory have laws that sets out rules for ending relationships, property division, financial arrangements for child, spousal and partner support, and parenting arrangements for the children. If you were not legally married, you will need to rely on your provincial or territorial legislation. These laws will deal with arrangements for children whether or not the parents were in a relationship at all.
Parties who were or are married have a choice of whether to proceed under the Divorce Act or the provincial / territorial legislation to sort out their family law issues, apart from divorce.
Provinces and territories also have court rules that govern the procedures in court. Some provinces have rules specific to family court. These rules set out how court procedures will work, for example, what documents you must file, how to file applications or documents, how much time you have to file documents, and how a hearing / trial will be conducted.
Other
Each province and territory also has laws dealing with enforcement of financial support orders, adoptions, and the protection of children. Try to become familiar with the legislation in your region that may be applicable to you.
- 2.3 Parenting After Separation
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It is vital to ensure the separation causes the least distress to your children. Your children will go through significant changes. They will also struggle with their emotions throughout the process.
The Best Interests of the Children
Part of helping your children adjust is coming up with a parenting plan that is in the best interest of the children. The best interests of the children are what are considered by the law, and so should be considered by parents first and foremost.
The factors may include:
- the children’s ages;
- the views of the children, when age appropriate;
- their health and well-being;
- any special needs;
- their relationships with important people in their lives including each parent and their extended family;
- cultural considerations;
- history of care; and
- the impact of family violence against any family member or the child.
The “best interests of the children” is a legal test but it is useful to frame all of your decisions with respect to your children through that lens, whether you go to court or not.
- 2.4 Parenting Plan
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Generally, as a parent, you are responsible (individually or jointly) for your children’s care. You may have heard the terms “decision-making responsibilities”, “contact”, “guardianship”, “primary residence”, “parenting time”, “parenting arrangements” etc. These are all terms used to describe how the children will be looked after and which parent will do what to care for the children. These terms have specific definitions depending on which law your case is under, so it is important to become familiar with the law you are using.
Your legal responsibilities as a parent could include making decisions about:
- day-to-day care;
- health care;
- education;
- religious upbringing;
- extracurricular activities; and
- where the child lives.
You could share the responsibilities equally or one of you may take on one or more of the responsibilities. As you are trying to work out parenting decisions, always keep in mind that they must be in your child’s best interest.
You do not need to go to court to resolve parenting issues. You and the other parent are free to come to an agreement between you that works best for your children’s unique situation. You are going to need to make a lot of decisions on how to parent. You will need to come to an agreement (a parenting plan) about where and with whom the child will be living and when the child will have time with each parent.
Here are some examples of ways to divide parenting time:
- the child spends one week with one parent and the next week with the other parent;
- the child lives with one parent during the school year and the other during summer holidays and winter breaks;
- the child primarily resides with one parent and the other parent has parenting time according to a fixed or flexible schedule which may include weekends and times during the week; or
- the child lives with one parent during the week but lives with the other parent on weekends.
You should also set out which parent has what decision-making responsibilities. There are lots of ways to divide up these responsibilities.
For example, the decision about the child’s extracurricular activities could be:
- the sole responsibility of one of the parents only;
- the responsibility of both and they must come to a mutual agreement on all decisions; or
- the responsibility of both and can make decisions on their own.
Once you come to a general agreement of how your parenting time is to be arranged, it is important to consider the details. For example, at what time is the child to be picked up and dropped off? Where are these pickups and drop offs going to happen? If you are alternating weekends, who has the first weekend? How are long weekends and specific holidays to be spent? These are all questions that you should discuss. Many parents find that conflict arises around scheduling parenting time and communication in general. It pays to be organized and to keep communication civil.
Remember: Your children’s needs change over time. As such, your parenting arrangements may need to be adjusted to fit the evolving needs of the children. Be flexible and always keep the best interests of the children top of mind when establishing parenting arrangements. Allow flexibility to revisit your agreement as the needs of your family change.
Take a moment to fill in the Parenting Decisions Worksheet – and see Section 17 Resources for Justice Canada’s Parenting Plan tool. This worksheet will help you think about your position on a lot of the major decisions you are going to need to make about raising your children. The time spent thinking about how you can parent together early on will help to ensure that key elements of your parenting agreement are worked out.
- 2.5 Parenting Decisions Worksheet
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Before you sit down to work out the parenting decisions for your family, think about what will be best for the children in the following areas:
Residence
Day-to-day care and decisions
- How will the responsibility for the care, control and supervision of the child be shared?
____________________________________________________________________________
____________________________________________________________________________
- How will the day to day decisions affecting the child be made?
____________________________________________________________________________
____________________________________________________________________________
Week-to-week time arrangements
- Overall schedule and plan for the children’s transition between the parents’ homes
____________________________________________________________________________
____________________________________________________________________________
Holidays and special days
- School vacations
____________________________________________________________________________
____________________________________________________________________________
- Parents’ vacations with and without children
____________________________________________________________________________
____________________________________________________________________________
Health care decisions
- How are the child’s health care decisions shared? (e.g. medical treatment, checkups, dental etc.)
____________________________________________________________________________
____________________________________________________________________________
Education decisions
- Consultation between parents about any change in school, special educational needs, tutoring or extracurricular activities
____________________________________________________________________________
____________________________________________________________________________
Communication between parents
- What type of information should be communicated about the children and how it should be communicated?
____________________________________________________________________________
____________________________________________________________________________
- Communication when the child is with the other parent
____________________________________________________________________________
____________________________________________________________________________
Changes in childcare schedule
- What happens if a parent cannot care for a child when scheduled?
____________________________________________________________________________
____________________________________________________________________________
Resolving disagreements
- How will disagreements be resolved? (Be specific)
____________________________________________________________________________
____________________________________________________________________________
Other issues
____________________________________________________________________________
- 2.6 Child Support
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Parents have a legal responsibility to support their children financially. They have this duty when they separate or divorce, even if one parent does not see or take care of the children. This is called child support and it is the right of the child. One parent pays the other to help cover the costs of caring for the children. There are legal guidelines set out by the federal and or provincial / territorial governments on how to calculate these payments. For more information on how to calculate child support payments, see Section 17 Resources.
In addition to basic child support, parents may also have the responsibility to pay for special or extraordinary expenses of the children.
Parents should think about child support as soon as they separate. While all the other long-term details of the separation and divorce get worked out, children still need to have their daily needs met. If you are required to pay child support but fail to do so, the court may order you to pay back-payments.
Child Support Payments
The laws around child support are quite specific. As a parent, you must financially support any dependent children. The parent who the child lives with most of the time is entitled to receive child support from the other parent to cover the cost of raising the child. If the child shares their time equally or close to equally between their parents, the parent who has a higher income will likely pay net child support.
Special or Extraordinary Expenses
In addition to child support, parents are required to pay for their children’s special or extraordinary expenses. Often, special or extraordinary expenses will cover:
- child care expenses
- medical expenses
- educational expenses, such as school field trips
- discretionary extracurricular activity expenses upon which the parents agree, such as music lessons or sports
Payments for special or extraordinary expenses are typically divided between the parents, proportional to their incomes.
Steps to Calculating Support:
- Determine which guidelines apply (federal or provincial / territorial).
- Determine the number of children requiring support (minor children, children of the relationship over the age of majority who still depend on their parents).
- Determine the parenting arrangement (where the children spend most of their time).
- Determine annual parental income (may need one or both parents’ income).
- Find the base amount of child support payable using the child support guideline tables (which table you use depends on your province / territory).
- Determine which, if any, of the children’s expenses qualify as special or extraordinary and divide any special or extraordinary expenses between the parents in proportion to their respective gross incomes.
- Determine if there is undue hardship (if it is difficult to pay or difficult to support the child). Review the guidelines to see what counts as undue hardship.
Once you reach an agreement on how much child support is to be paid, there will still be decisions about how these payments are to be made. How frequently will they occur and on what date? What will the method of payment be? What happens if a payment is late?
Calculations
For an easy way to calculate child support, go to the Federal Justice Canada or applicable provincial / territorial department of justice website.
The basic calculator assumes that the child / children spend more than 60% of their time with one parent. In this parenting arrangement, the paying parent is the one that spends less time (less than 40%) with the child / children.
To calculate:
- Enter the annual gross income of the paying parent, the number of children and the province the paying parent lives in.
- Click lookup.
- The amount provided is the monthly amount the paying parent will need to pay the other parent for child support.
If you and the other parent spend roughly equal amount of time (40% or more) with the child/children, you will need to do this calculation twice: once with your income and once with the other parent’s income. The net difference between the two calculated child support amounts will be the amount of child support the parent with the higher income will pay to the other parent for child support.
You should provide for an annual exchange of financial information (usually after the date of tax returns or other agreeable date), to provide for annual adjustment by agreement at a certain date (some provinces / territories have an automatic legislated adjustment that you can accept or reject).
Let us imagine you do the calculation and it says your support payment is $478 and the other parent’s support payment is $692. The difference you get $214. If you share parenting time relatively equally (40% or more), your spouse would pay you $214 a month for child support.
Special Expenses Calculations
Usually both parents must contribute to the cost of reasonable special expenses in proportion to their incomes. It is important to exchange financial information. You will need to know both your annual income as well as that of the other parent. You will want to write down a list of all the special expenses your children have during a year, such as piano lessons, tutoring, dental costs etc. Some jurisdictions have specific forms for this – see Section 17 Resources. On discretionary extracurricular activities both parents should agree, or ask the Court to direct what activities are appropriate for your children. Make sure to organize all receipts for special expenses in a folder and be able to provide them during your discussions. You will divide the cost of these expenses between you and the other parent proportional to your incomes or in another way you agree. If you cannot agree on how to divide special expenses, you may need legal and financial advice, or ultimately a court decision to determine what reasonable special expenses are and how they are to be divided.
Fill in the Child Support Worksheet with your own information. This will put you in a better position for making a realistic settlement.
- 2.7 Child Support Worksheet
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Fill in the details of your financial situation. If you are unsure of the exact numbers, estimate to the best of your ability.
Parenting
Sole
Shared
Annual Income
Other Parent:
You:
Other Parent:
Total Income
Income Proportion (%)
You:
Other Parent:
Support Payment
You:
Other Parent:
Special Expenses (%)
You:
Other Parent:
Special Expense Chart
Item
Cost
You Pay
Spouse / Partner Pays
TOTAL:
- 2.8 Spousal Support
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Spousal support is the money that may be paid by one spouse to the other when a relationship ends. Either spouse may be eligible to receive spousal support, but spouses are not automatically legally entitled. When a relationship ends, one spouse may face financial disadvantages as a result of the divorce or separation. Spousal support is designed to ensure, as much as possible, that neither spouse faces economic hardship from the separation. Spousal support helps each spouse become financially independent within a reasonable amount of time. You will want to check what the law in your province or territory is relating to spousal support. You should seek legal advice to help you determine what your spousal support rights or obligations might be.
The Spousal Support Advisory Guidelines (SSAG)
The Federal SSAG provides informal guidelines that can help applicants calculate the range of spousal support that they might be able to receive. The SSAG is not mandatory. Spousal support agreed to by the parties can be below or above the amounts in the SAGG, but courts must consider the guidelines and, except in certain circumstances, will generally follow the guidelines when awarding disputed spousal support.
Once you have agreed to an amount of spousal support, you must also decide how the support will be paid. For instance, one couple may agree to pay spousal support all at once in a lump sum, while another might agree to pay in monthly installments for a set period of time. Be aware of the tax consequences of these decisions and consider speaking to an accountant or tax specialist.
Tax Ramifications
Generally, periodic spousal support payments are tax deductible for the payor and taxable income for the recipient. To claim spousal support payments as a tax deduction, the agreement or court order must clearly state that the payments are for spousal support and the payments must be periodic in nature.
Lump sum payments are neither tax deductible nor taxable income.
Partner support with respect to unmarried couples may be available under provincial legislation.
Details to Consider:
- Type of payment: Is it a one-time payment or periodical (e.g. monthly for the next period of time or indefinitely).
- Date payments are to be made: If they are made periodically (such as monthly or bimonthly) then specify which date every period they are payable and what date the payments are to start.
- Date payments are to end: If there is an end date, make sure to specify it.
- Any circumstances that end support: Parties can agree that when an event occurs, such as one party starts receiving pension or remarries, spousal support payments end.
- How payments are to be made: This could be anything you agree to together, such as post-dated cheques, cash, or e-transfers.
- Annual exchange of financial information: You can agree to share copies of your income tax returns for the previous year by a specific date each year, if you agree to make spousal support income dependent.
- Reviewable: If you want to review the terms you should set out when those reviews are to occur, e.g. review to be done every June 1.
- Dispute resolution: Discuss how you want to resolve any disagreements about support should they arise in the future. You can agree to mediate first before going to court.
Take a moment to fill in the Spousal / Partner Support Worksheet.
- 2.9 Spousal Support Worksheet
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Fill in the blanks to the best of your knowledge. If you are claiming spousal / partner support, briefly note why you would be entitled to it (e.g. how you are financially disadvantaged).
Annual Income
________________________
You
________________________
Spouse
Support Payment
________________________
You
________________________
Spouse
Reasons for spousal support
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
Notes
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________
- 2.10 Enforcing Support Orders
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Child and spousal support orders are legal documents and can be enforced through the courts. An agreement for child or spousal support may also be enforced if it is in writing. Each province and territory has a program to help enforce support orders and agreements if they are not being followed. See Section 17 Resources for information about the program in your region.
- 2.11 Property Division
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It is likely that during your relationship, you or your spouse / partner acquired assets, such as a home, a car, or furniture. You may have also acquired debts, such as a mortgage, credit card debt or a bank loan. You may have joint bank accounts and loans may be intermingled. Property division is the legal term that describes how you and your former spouse / partner decide to separate what you own and what you owe. You are going to need to decide how to separate the assets and debts. The specific law on how property is divided varies between province and territory and whether parties are married or not. Even what is considered family property to be divided is different in different jurisdictions. For example, in some jurisdictions most things you obtained during your relationship – what you own and what you owe – is family property that may be split, but in other jurisdictions, property and debts you acquired before the relationship may also be considered family property for married couples. There may be differences in the law depending on whether you and your spouse were married or unmarried. As such, it is best to get legal advice from a lawyer in your area to know exactly how a court might divide your property.
Between the two of you, you can decide to divide property any way you choose. So, for example, one spouse may get the house and all of the furniture, while the other gets both cars. This is perfectly legal. It is your agreement and is valid as long as you are making an informed decision. Couples can decide how they want to separate their property and debt.
Protect Yourself Financially
You should take steps to protect yourself financially as soon as possible after you separate. You may wish to take legal steps or agree with your former spouse / partner to freeze or close joint credit cards or accounts, and protect any real property from being sold or borrowed against. If you do not agree to do this, or take legal steps to do so, your ex could, for example, run up a credit card debt on your joint card which could affect your credit, if not paid. However, we are not telling you what to do in this regard, but only to suggest an agreement with your former spouse / partner, or seek advice on how to do so if no agreement.
It is a good idea to record your date of separation because you may be responsible for assets and debts up until the date of separation. You may also want to let people know about the separation, including your creditors. Here are some steps to protecting yourself financially (by agreement or, if no agreement is possible, by court order on application):
- Let your creditors know right away about your separation
- Freeze or reduce borrowing limits on joint credit cards and accounts
- Close joint accounts and credit cards
- Require both of your signatures in order to make decisions about accounts
- Register your interest in property
- Get a court order to protect your assets
- Speak to a lawyer or a financial advisor
This can get complicated and you could face significant financial consequences if you do not protect yourself. Speaking to a family lawyer as soon as possible is the best way to ensure you are protected.
Financial Disclosure and Asset Hiding
In order to come to an agreement regarding property division, both parties need to provide full and frank disclosure. However, a common problem in family litigation is where one or more parties hides assets, or one party pressures the other to accept an unfair property settlement. Here are some signs or reasons that someone may be hiding assets or spending your share of assets:
- They are secretive about their financial affairs
- They suddenly claim their business is failing
- They want complete control of bank accounts
- They pay suspicious debts to or give large gifts to friends or family
- They gamble or have a substance abuse problem
- They own a safety deposit box
- They open new bank accounts and transfer money into them
If you are concerned that your ex is hiding or spending assets or is pressuring you to sign an unfair agreement you should seek legal advice. You should get independent legal advice regarding any separation agreement before you sign.
You may need to get a court to order your ex to provide disclosure or you may need to do some investigation into their assets. Without full financial disclosure, it is almost impossible to come up with a fair separation agreement. For more information on disclosure obligations in family matters, see Section 9: Disclosure / Discovery / Questions.
Steps to Separating your Finances
By having a good grasp on your own financials, you will be more able to deal with dividing your property. With full and frank disclosure from both you and your ex, you will have the confidence you can move forward towards a fair agreement for both parties.
- Make changes to bank accounts: If you have a joint credit card or bank accounts, you may want to agree to cancel them, share the contents and apply for your own card or account. Be sure to inform the other party about any changes to your joint cards or accounts.
- Collect information: Gather all your financial information in a binder (such as bank statements, mortgage agreements, tax returns and pay stubs).
- Appraise: Have your property professionally appraised to determine its current value.
Decisions
You will need to make some decisions about how to divide up your things.
The Home:
- What will happen to the family home? Will you sell it or will one of you continue to live there and buy out the other’s share in the house?
- What is the value of the home? Consider getting a professional value assessment done.
- If you cannot come to a final decision / agreement on the home or you are planning to sell the home, you will need to make some decisions about what to do with the home in the meantime.
- Decide who is to arrange, or pay for things like the cost of a professional value assessment, house repairs, insurance, mortgage and taxes on the family home.
Other:
- Who gets what? Create a list of the family assets and think about what you want to keep. Also try to keep in mind your former spouse / partner’s interests and think about what they may want to keep. This will help you react more calmly and be better prepared for negotiations.
- Review personal health, life, and disability insurance coverage. Consider changing beneficiaries on policies.
- Change your will: Review your Will and other estate planning documents and make any necessary changes.
Use the Property Division Worksheet to determine how much each of you are entitled to.
- 2.12 Property Division Worksheet
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List everything you and your former spouse / partner own and owe. Write down the present value of each item and the value each of you will get according to the property division laws or agreements in place. You can use this worksheet when sitting down to negotiate.
Assets ($ you own)
Total value
You get
Spouse / Partner gets
Bank Accounts
Real Estate
Furniture
Vehicles
Financial Assets
(Investments, Pensions)
Other Valuables, Insurance Policies
Total Assets (A)
Liabilities ($ owed)
Total value
You get
Spouse / Partner gets
Real Estate Mortgage
Bank Loans
Credit Cards
Taxes Owed
Automobile Loans
Other Loans
Total Liabilities (L)
Net Worth: (A) – (L)
- 2.13 Divorce
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If you were married, you remain married until you receive a court order for your divorce. To get a divorce order, you must file certain court forms applying for a divorce. You are not legally required to get a divorce. You may settle all key separation issues in an agreement or order without applying for a divorce. Some couples separate but remain married for personal or financial reasons (e.g. employment benefits). However, if you do wish to remarry you will need to first be granted a divorce.
To get a divorce you need to prove one of the following:
- One-year separation: you and your spouse have lived apart for at least a year;
- Adultery: Your spouse was unfaithful to you; or
- Cruelty: Your spouse was physically or mentally cruel to you.
Separation is the most frequent and only requires proof of the date of separation, whereas other grounds require further evidence and proof. However, grounds for divorce are not fault (but only factual) based – they do not determine support or property settlement entitlement.
If you and your former spouse agree on how to deal with the key issues you can apply for an uncontested divorce (also called a “desk-order divorce”). You can file an application jointly (joint application) or one of you applies (sole application). If the other does not respond, it is an uncontested divorce.
Uncontested divorces are often a matter of filing the correct and complete documents. If you both agree on the issues you will likely be granted the divorce without going in person before a judge.