FAMILY LAW

1. FAMILY LIFE IN CANADA (CONTEXT)

Family structures in Canada have changed significantly over time. While families remain central to individuals’ lives, there is no longer a single “typical” family. Modern families include married couples, common-law partners, same-sex couples, lone-parent families, and multi-generational households.

Key trends include declining marriage rates, increasing cohabitation, rising divorce rates, delayed childbearing, and an aging population. These social changes have important legal implications, particularly regarding the rights and obligations of married versus common-law couples.

2. MARRIAGE

Marriage in Canada is governed by both federal and provincial law. In Ontario, the Marriage Act sets out formal requirements, such as obtaining a licence and meeting age requirements.

The legal definition of marriage was expanded following Halpern v. Toronto (City), which held that restricting marriage to opposite-sex couples violated the Charter. Marriage is now defined as the voluntary union of two persons.

A valid marriage requires capacity. A marriage is void if the parties are too closely related (prohibited degrees), or if one party is already married (polygamy is prohibited under the Criminal Code).

3. DIVORCE

Divorce is governed by the Divorce Act. The only ground for divorce is marriage breakdown, which can be established in three ways:

  • living separate and apart for at least one year

  • adultery

  • cruelty (physical or mental)

Most divorces are granted based on one year of separation.

4. FAMILY PROPERTY (ONTARIO)

Under the Family Law Act, married spouses are entitled to share equally in the financial gains of the marriage through a system called equalization of net family property (NFP).

Each spouse calculates their NFP by:

  • determining the value of assets at separation

  • subtracting debts

  • subtracting property owned at marriage (with some exceptions)

  • excluding certain assets (e.g., inheritances)

The spouse with the lower NFP receives half the difference between the two amounts.

This system is based on the principle that both spouses contribute equally to the marriage, whether financially or through roles like childcare and household management.

5. MATRIMONIAL HOME

The matrimonial home receives special protection under the Family Law Act.

Both spouses have an equal right to possession of the home, even if only one spouse owns it. One spouse cannot sell or mortgage the home without the other’s consent.

Courts may grant exclusive possession of the home to one spouse, especially where children are involved. The best interests of the children are a key consideration.

6. COMMON-LAW RELATIONSHIPS

Common-law partners increasingly receive similar treatment to married couples, especially regarding support obligations. In Ontario, partners who live together for three years or have a child together may owe spousal support.

However, property division rules (equalization of NFP) do not apply to common-law couples in Ontario.

In Nova Scotia (Attorney General) v. Walsh, the Supreme Court held that excluding common-law couples from property division laws is not unconstitutional, emphasizing freedom of choice.

Similarly, in Quebec (Attorney General) v. A (Eric v. Lola), the Court upheld Quebec’s exclusion of common-law partners from property and support regimes, though the judges were divided.

7. SPOUSAL SUPPORT

Spousal support is governed by the Divorce Act and aims to:

  • compensate for economic disadvantages caused by the relationship

  • share financial consequences of the marriage breakdown

  • promote self-sufficiency

The Spousal Support Advisory Guidelines provide ranges for amount and duration but are not legally binding.

For marriages without children, support is based on:

  • income difference

  • length of the relationship

Longer marriages and greater income disparities generally result in higher and longer support.

Case: Fisher v. Fisher

In Fisher v. Fisher, the court emphasized that the Guidelines are a starting point, not a strict formula. The court adjusted both amount and duration to reach a fair outcome, using the Guidelines as a “litmus test” for reasonableness.

8. CHILDREN – DECISION-MAKING & PARENTING TIME

Under the Children's Law Reform Act, decisions about children are based entirely on the best interests of the child.

The law uses modern terms:

  • decision-making responsibility (formerly custody)

  • parenting time (formerly access)

When parents are together, both share decision-making authority. After separation, courts may allocate responsibilities or approve agreements between parents.

9. BEST INTERESTS OF THE CHILD

The best interests test is the central principle in all parenting decisions.

Courts consider factors such as:

  • the child’s safety and well-being (primary factor)

  • relationships with parents and others

  • stability and past care

  • the child’s views (if mature enough)

  • ability of each parent to care and cooperate

  • any history of family violence

In Young v. Young, the Court emphasized that parental rights are irrelevant—the focus is entirely on the child.

Although the test is broad and flexible, it must be applied objectively based on evidence, not personal views.

10. CHILD SUPPORT

Parents have a legal obligation to support their children under both the Family Law Act and the Divorce Act.

Child support is determined using mandatory Child Support Guidelines, which are based primarily on the payor’s income and number of children.

The Guidelines provide fixed monthly amounts, ensuring consistency. Additional expenses (e.g., daycare, medical costs) may be shared proportionally.

Child support is highly structured and leaves little room for judicial discretion.

11. DOMESTIC CONTRACTS

Couples can create legally binding agreements to govern their relationship. These include:

  • cohabitation agreements

  • marriage contracts (prenups)

  • separation agreements

These contracts can address property division, support obligations, and financial matters.

However:

  • courts will override terms that are not in the best interests of children

  • matrimonial home rights cannot be waived

  • spousal support terms may be reviewed in limited cases

Valid property agreements are generally enforced. Independent legal advice is strongly recommended to ensure enforceability.

FINAL TAKEAWAY

Family law balances three major goals:

  • fairness between partners (property and support)

  • certainty and consistency (child support rules)

  • protection of children (best interests test)

The most important principle overall is that the best interests of the child always come first, even over agreements between parents.