Family Law
What is family law? The overview below and the series of questions and answers to which we will periodically add will help answer that question. Visit our alternate site for possible additional introductory information on this topic: https://www.fera-gasparini.ca/. We are also currently working on a new book tentatively called Canadian Family Law in a Nutshell. Consult a practicing legal advisor on personal matters.
OVERVIEW
Federal laws deal with marriage (essentially “who” may marry) and divorce.
When considering a divorce application, a court can also consider support for the spouse or child or both. In the context of a divorce, this is called corollary relief. But parties can separate, agree to terms of separation (in a separation agreement for example), and not seek a divorce.
Provincial laws may be used by spouses who are married (but do not want a divorce) or by those who have been in a long-term marriage-like relationship and now wish to separate. Provincial laws can be used to acquire child or “spousal” support, restraining orders, and compensation for harm done.
On separation, provincial legislation may assist married and unmarried spouses to equitably divide property acquired during their relationship. In many provinces, legislation only assists married spouses in property division. In that case, for those who were in a relationship of some duration but did not marry, the common law may assist in some Canadian jurisdictions.
The family is normally considered to be a safe zone for its members, but it is also a place that gives rise to much abuse and violence that affects a spouse and children physically, emotionally, and mentally. Those who experience family law issues should consult qualified professionals for assistance. This site only provides general information. It is not legal advice.
MUCH MORE CONTENT BELOW
The authors, Norman Fera and Richard Gasparini are currently working on a book tentatively called “Canadian Family Law in a Nutshell” to provide much more information on this topic. For other law topics, refer to this book:
“Canadian Law and Business Studies”: https://bit.ly/3Ay0lSR
Can a family court send you to jail? The short answer is “yes”. This does not happen frequently. Most often parties comply with court orders to avoid jail time. But defiance of family court orders, especially repeated non-compliance, may lead to a fine, jail time, or both. Also, inappropriate behaviour in the courtroom (evident to the judge) can be visited with serious repercussions which may include being jailed. Statutes, regulations, and rules of practice in the relevant province or territory need to be consulted to determine the powers available to family court judges. Incarceration or the real possibility of being jailed is a serious matter and anyone facing such a reality or possibility should obtain legal advice from a lawyer.
MONEY COMPENSATION FOR FAMILY VIOLENCE: In the recent Ahluwalia case, on the most contentious issue, the mother’s claim for damages, the Ontario Superior Court awarded $150,000 in compensatory, aggregated, and punitive damages for the tort of family violence: 2022 ONSC 1303 (CanLII) | Ahluwalia v. Ahluwalia | CanLII. (Note that this tort is not yet fully established.)
WHAT IS FAMILY VIOLENCE? Canada's Divorce Act defines family violence as any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
- physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
- (b) sexual abuse;
- (c) threats to kill or cause bodily harm to any person.
Can Family Violence be Deadly? In the USA, half of the victims murdered by their intimate partner are killed with a firearm. Zackey Rahimi assaulted his girlfriend. He had fired his gun 5 times in the previous two months but the restraining order did not require him to give up his pistol which he kept at his home. The court determined he had a Constitutional right to the firearm. A ruling such as this in Canada is not likely.
Can I sue if my partner is violent? Yes, apart from criminal proceedings, intimate partner violence can be addressed in a claim for money damages. A spouse, whether married or not, can sue another spouse for family violence. Lawyers filing for divorce on behalf of their clients are now more often also filing claims for damages due to family violence (and are succeeding). This is general information. On personal matters, consult with a lawyer. These kinds of claims are being challenged in appeals.
Is a police station a neutral zone for a parenting exchange? It probably is but in K.M. v. J.R., the Ontario Superior Court Justice implored parents not to do so. A police station is intimidating even to adults. It scares a child and reminds them of past incidents of family violence where the police were called. It is also a reminder that the combativeness between parents is not at an end. Also, as viewed from the child’s perspective, it may suggest that the child is the cause of the conflict.
What are rules of the court or procedural rules? These are procedural rules – what forms to use, what the content of the various forms or documents are to contain to start a court proceeding and how the defendant answers the claims made, and so on. The rules of procedure also contain time limits. For example, a defendant has a set number of days to answer a claim.
In some provinces, rules for family law proceedings are separate from the rules of procedure that apply in other civil litigation. Family law rules, where they exist, may be simpler and designed to meet the needs of those who used to be physically and emotional close.
It is very important that the rules of a court be followed to the letter. Otherwise, the parties will be entangled in procedural wrangling as well as substantive issues such as those pertaining to divorce, parenting, support, and division of property. Procedural fighting is costly. In the BC McLean case, because of some tardiness and lack of precision, the procedural “war” between the parties went on for 2 years. A lot of time, money, energy, and frustration was expended on steps and procedures while the substantive issues of support and property division remained undecided. In short, not following the court rules of procedure will cost you a bundle.
RESTRAINING ORDERS: In Ontario, two statutes allow a spouse to seek a restraining order against an abusive spouse or former spouse. Such an order may restrain one spouse from directly or indirectly contacting or communicating with the other or any child in the lawful custody of a spouse. See, for example, section 46 of the Family Law Act: RSO 1990, c F.3 | Family Law Act | CanLII.
PEACE BOND: Under the Criminal Code that applies everywhere in Canada someone who fears harm from another may apply to a court for a peace bond which may place conditions and restrains on the person who threatened or caused harm to the applicant or to a child. Breach of the terms of a bond is a criminal offence. A person seeking such a bond should seek advice from a practicing lawyer. This is merely general simplified information. Section 810 of the Criminal Code deals with sureties to keep the peace (peace bond): RSC 1985, c C-46 | Criminal Code | CanLII.
Please visit us at our alternate website: https://www.fera-gasparini.ca/ and also to have a quick look inside our book on other law topics: Canadian Law and Business Studies: https://bit.ly/3Ay0lSR. Norman Fera and Richard Gasparini are currently working on a book tentatively titled Canadian Family Law in a Nutshell.
Is time-off permitted for family violence or during separation or divorce? Not yet in Canada, although Australia currently assists those suffering family violence with time-off and the United Kingdom has a voluntary program for employers to assist those experiencing the trauma of a spousal or family split-up. Among other things, employers can adjust work schedules.
IMPUTING INCOME TO A PAYER OF CHILD SUPPORT: Failure to meet financial disclosure requirements may result in a court imputing income to that potential payer of child support based on non-government wage surveys: See 2022 ONCJ 421 (CanLII) | Lewis v. Willis | CanLII.
DIVISION OF PROPERTY AFTER SEPARATION: In Ontario, property acquired during a marriage is likely to be divided equally when the parties separate. Parties that separate after a lengthy cohabitation may have to rely on the common law to obtain an interest in property acquired during cohabitation if both names are not on the title. This is a complex area of law and personal issues need to be addressed with the help of a practicing lawyer.
This is general information, not legal advice or opinion for a personal matter.
SAME-SEX and INTERRACIAL MARRIAGES: The USA has passed legislation to protect same-sex and interracial marriages, although the individual states will have some say. In Canada, the federal Civil Marriage Act makes marriage the lawful union of two persons to the exclusion of all others.
SPOUSAL RIGHTS ON A RESERVE: The federal Family Homes on Reserves and Matrimonial Interests or Rights Act applies on reserve lands and may be used to address division of the value of matrimonial Interests or rights, exclusive possession of a home due to family violence, and emergency protection orders. The provisions in the statute apply unless Fist Nations have made their own laws on such subjects as part of their rights to self-government.
DOMESTIC AGREEMENTS - SEPARATION, COHABITATION, or MARRIAGE CONTRACTS: These can be overturned using general contract law and statutory provisions. Generally speaking, the courts will examine these agreements as to the circumstances at the time they were made, how they meet the goals and objectives of family law statutes, and present circumstances. Check with your lawyer or family law service provider as this is not legal advice.
COMMON LAW SPOUSES AND PROPERTY CLAIMS: In the western provinces, those who have separated after a marriage-like relationship of some duration may have statutory rights to property acquired during the relationship. Where there are no statutory provisions, the common law may assist in other provinces. Those with potential property claims should seek out professional legal assistance.
Our websites provide general legal information, not legal advice
COHABITATION AGREEMENTS SURVIVE MARRIAGE: Cohabitation agreements often state that the provisions will continue to apply should the parties marry. In Smith v Smith, the parties signed a cohabitation agreement, and then married. They remained married for some 18 years. In that Agreement, the wife released her rights to spousal support. After the marriage breakup, she sought to have that agreement overturned but failed for reasons set out by the Ontario Court of Appeal in 2017 ONCA 759 (CanLII) | Smith v. Smith | CanLII.
SETTLING FAMILY LAW DISPUTES: The courts may be the place of last resort for settling family law disputes when the relationship breaks down or comes to an end. Negotiation, facilitation, mediation, and collaborative law (where parties and lawyers strive to reach accord without a judge's ruling) are among the alternative dispute resolution processes.
This is general information, not legal advice or opinion for a personal matter.
LIMITATION PERIODS: One must sue within set time periods or lose the right to bring a claim. In Ontario, claims for child or spousal support do not have the general two-year time limit. Claims for equalization of net family property do not fall under the general time limit but can be as short as six months if a spouse dies. Currently, case law says an application to invalidate a domestic contract such as a separation agreement has no time limit. But check with a professional legal service provider early on. This is critical.