An Introduction to Family Law in Ontario
What you need to do when separating or divorcing
If you and your spouse are separating, you have to make decisions together about things like:
- who will stay in your home
- how your children will be cared for and where they will live
- financial support
- dividing up property and money
It is usually best if the two of you can agree on as many of these things as possible. You can talk to your spouse on your own or with the help of someone you trust, a lawyer, or a mediator.
Anything you and your spouse agree on can be written in a separation agreement. You do not have to wait until you agree on everything before making a separation agreement. You can make an agreement on the things you agree on, while working on your other issues.
You do not need a lawyer to make a separation agreement. But it is a good idea to get your own legal advice before signing one. You and your spouse cannot get advice from the same lawyer.
Once you sign a separation agreement, you and your spouse have to follow it unless you both agree to change it, or a judge decides that there is a good reason to change it.
If you cannot reach an agreement on your own, you and your spouse may want to use a mediator.
A mediator is a person trained to help you and your spouse discuss your issues, understand each other’s position, and try to reach an agreement.
Mediators do not:
- give legal advice
- make decisions
- take sides
Family mediators are usually professionals such as social workers, lawyers, or psychologists.
You do not need a lawyer to go to mediation with you. But it is a good idea to have your own lawyer review any agreement you make and give you legal advice before signing it.
Sometimes mediation may not be a good idea. For example, if there has been violence or abuse, or if there are serious mental health or drug abuse issues.
The Ministry of the Attorney General offers free and sliding-scale mediation services in family courthouses. Sliding-scale means the amount you pay depends on your income and the number of children you have to support.
To find out more about these services, search for “Family Mediation Services” on the Ministry’s website at www.attorneygeneral.jus.gov.on.ca.
You can also hire a private mediator.
If you and your spouse still cannot agree, you may decide to go to arbitration or to court to get a decision.
An arbitrator, like a mediator, is a person trained to help you and your spouse discuss your issues and try to reach an agreement. But unlike mediation, if you cannot agree, the arbitrator makes a decision.
Arbitrators are usually retired judges, mental health professionals, or lawyers experienced in family law. Usually, you both must pay for the arbitrator.
In Ontario, arbitrators can make legally binding decisions. This means that you and your spouse must follow the arbitrator’s decision as if it is a court order.
But this is true only if the arbitrator follows certain rules. The 2 most important rules are:
- Usually each spouse must get their own legal advice before agreeing to arbitration.
- The arbitrator makes a decision based only on Canadian family law. This means the arbitrator cannot base their decision on any religious, cultural, or other rules. The arbitrator must apply the same laws that a judge would apply in a Canadian court.
People sometimes choose to discuss their family law issues with a religious or community leader or another person they trust. But this person does not have any legal power to make decisions unless they followed all the rules to make a legal family law arbitration and you and your spouse agreed to give them this power.
You do not need a lawyer to go to arbitration with you. But it is a good idea to have your own lawyer review any agreement you make and give you legal advice before signing it.
For information about arbitration, search for “Family Arbitration” on the Ministry of the Attorney General’s website at www.attorneygeneral.jus.gov.on.ca.
Going to court can be a complicated process and take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.
If you need the court to decide a specific issue before a trial, you can ask for a temporary order. For example, a court may make a temporary order if:
- you and your spouse cannot agree on where your children will live immediately after you separate
- you need support right away
- your spouse has been, or threatened to be, violent or abusive
- there is a danger your spouse may abduct your children
- your spouse is not allowing you to see your children
- there is a danger your spouse may hide or give away property or money
Even after the court process has started, you and your spouse can stop it to try and make an agreement. Many steps in the court process encourage you to resolve your issues on your own.
The flowcharts in CLEO’s Steps in a Family Law Case can help you understand and follow the court process. Visit www.familycourt.cleo.on.ca.
You can also search “Understanding the family court system in Ontario” on the Ministry of the Attorney General’s website at www.attorneygeneral.jus.gov.on.ca.
Most people need help from a lawyer to get through the court process.