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in ontario, adoption law under the child and family services act (cfsa) requires the consent of all legal parents for a child under 16 to be adopted. however, the court can dispense with consent in specific circumstances. this summary outlines when parental consent is needed, who qualifies as a parent, how courts define the best interests of the child, and the legal process for step-parent or relative adoptions.
when parental consent is required
under section 137 of the cfsa, an adoption cannot proceed unless:
all legal parents provide written consent
or the child has been made a crown ward and a director consents
additionally:
a parent cannot give consent until the child is at least seven days old
a child aged seven or older must also consent to their adoption
all consents may be withdrawn within 21 days
who qualifies as a “parent”
not every biological father qualifies as a “parent” under the cfsa. a parent is someone with legal status or who has demonstrated ongoing involvement in the child's life. courts distinguish between:
fathers who had casual relationships and evaded responsibility
fathers who expressed interest or tried to stay involved
key case:
re c.(h.l.), 1990
a biological father who remained in limited contact and showed awareness of the child was deemed a parent requiring consent.in contrast, where a father was unaware of the child’s existence or where the mother withheld information, courts may determine that consent is not required. however, recent case law cautions against simply accepting a mother’s statement that the father should be excluded.
when consent can be dispensed with
under section 138 of the cfsa, courts can dispense with a parent’s consent if two conditions are met:
it is in the best interests of the child
the parent has received notice of the proposed adoption and the motion to dispense with consent, or reasonable efforts to provide notice have been made
this means both legal and procedural thresholds must be satisfied.
best interests of the child: key factors
under section 136(2) of the cfsa, courts evaluate the best interests of the child using factors such as:
emotional, physical, and mental needs
cultural and religious background
importance of stable family relationships
continuity of care and effect of disruption
child’s views, if ascertainable
delay in proceedings
any other relevant circumstances
the court applies these factors strictly. the applicant must prove that dispensing with consent is necessary and in the child’s best interests.
procedural considerations
notice and service requirements:
reasonable efforts must be made to notify the non-consenting parent. courts have denied motions where:no genuine attempts were made to locate the parent
substituted service was not sought when direct service failed
the applicant tried to avoid service due to personal inconvenience
who can bring the motion:
only an adoption applicant (typically a step-parent or relative) may apply to dispense with consent. child protection agencies may not bring this application unless adopting directly.relevant case law: examples of when consent was dispensed with
smll v. jkm, 2016
the father had no contact with the child in over eight years, never supported the child financially, and asked for money in exchange for consent. the child was bonded with the stepfather and requested adoption. consent was dispensed with.
jdrl v. mkl, 2015
the child had been raised by the aunt and uncle since infancy. the birth mother had ongoing mental health and substance use issues and no contact for two years. adoption was approved without the mother’s consent.
rs v. bw, 2011
the biological father had no contact or support role for seven years. the stepfather had a close relationship with the children. the court found it was in the children’s best interests to proceed with adoption without the father’s consent.
hml v. awg, 2010
despite the father’s late objection, the child had not seen him in years, no longer spoke the same language, and viewed the applicant as her only parent. consent was dispensed with.
when consent was not dispensed with
courts may refuse to dispense with consent if:
the parent has a current or historical relationship with the child
efforts to locate or notify the parent were insufficient
the application appears motivated by conflict with the other parent
in ac v. va, 2012, the court found that no serious effort had been made to serve or locate the father, and denied the application to dispense with consent.
key legal principles from recent rulings
adoption permanently ends legal ties between the child and biological parent
the focus is exclusively on the child’s best interests, not the parent’s rights
courts balance what the child gains and loses through the adoption
parental misconduct is relevant only if it negatively affects the child
courts are more likely to dispense with consent if there is no relationship
step-parent adoptions must not be used to eliminate a difficult parent
premature applications (e.g. before a new relationship is stable) may be rejected
a child’s views will be considered if they can be reasonably ascertained
adoption can provide legal security, continuity, shared surname, and inheritance rights
best practices for adoption involving consent issues
for applicants (e.g. step-parents, relatives):
ensure the child is bonded with the proposed adoptive parent
document all efforts to notify the non-consenting parent
prepare clear evidence that adoption is in the child’s best interests
avoid making applications too early in a new relationship
do not base the application solely on hostility or convenience
for biological parents:
maintain a relationship with your child if you wish to retain legal rights
respond promptly to court notices
provide evidence of your parenting role or plans for involvement
general guidance:
courts will not dispense with consent lightly
adoption is a permanent and final change in legal status
full compliance with service and notice requirements is essential
seek legal advice when facing or initiating an adoption application involving consent issues
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in family law, a court may order one party to pay the legal costs of the other. these costs can become a critical issue when the payor declares bankruptcy. whether or not a costs order survives bankruptcy depends on the nature of the underlying legal issue.
key point: support-related costs survive bankruptcy
legal costs that are related to child support or spousal support are treated the same as the support order itself. under section 178(1)(c) of the bankruptcy and insolvency act (bia), these costs are not discharged by bankruptcy. this means the support recipient can still enforce these costs, even after the payor has been discharged from bankruptcy.
relevant cases:
allen v. allen (1992): confirmed that costs related to support are not eliminated by discharge.
hatcher v. hatcher (2009): court held all costs could be enforced as support where apportionment was impractical and the losing party acted in bad faith.
pipitone v. pipitone (2009): payment of a joint line of credit was deemed lump-sum support and survived bankruptcy.
costs orders that do not survive bankruptcy
costs arising from issues unrelated to support—like property division or custody—typically do not survive bankruptcy. if no support is awarded, the entire costs order is considered discharged.
relevant case:
jones v. lamothe (1990): mother won custody but not support; court ruled that her costs were discharged in bankruptcy because they weren’t tied to support.
mixed costs orders: part support, part other issues
when a case involves both support and non-support issues, the court may make a mixed costs award. whether the support portion survives bankruptcy depends on how the costs are allocated.
courts may apportion the costs between support and other issues if there's clear evidence.
if support is the primary issue, courts may treat the entire award as support-related.
relevant cases:
allen v. morrison (1988): court refused to enforce any costs without evidence of how much related to support.
wildman v. wildman (2006): trial judge treated entire costs as support-related; upheld on appeal.
philip v. philip (2008) and beaumont v. beaumont (2006): courts amended original costs orders to clarify support-related amounts post-bankruptcy.
where should the allocation be decided?
typically, the trial judge who heard the case is in the best position to allocate costs between support and other issues. however, if time has passed or bias is a concern, another court may make that determination.
examples:
lang v. soyatt (1988): trial judge not ideal three years post-trial.
re stauffer (1990): judge apportioned 20% of costs to support despite concerns of bias.
passarello v. passarello (1998): proactive segregation of support-related costs upheld to prevent abuse of bankruptcy.
best practices for dealing with costs and bankruptcy in family law
1. ask for support-related cost orders
if you are seeking support, ask the court to explicitly label part or all of the costs as support-related. this will help protect you if the payor declares bankruptcy later.
2. seek clarification after trial if needed
if the original costs order doesn’t break down the amounts by issue, you can file a motion under rule 25(19)(c) of the family law rules to have the support-related portion clarified.
3. gather and preserve evidence
keep detailed records of your legal costs and the time spent on each issue. affidavits, invoices, and trial notes may be needed to support a claim that costs are related to support.
4. act quickly if bankruptcy is threatened
if you know the other party is planning bankruptcy, raise the issue with the court. it may help you secure a costs order that is enforceable despite bankruptcy.
5. be strategic in settlement offers
early and reasonable offers to settle can increase your chances of recovering legal costs. courts often award higher costs if the opposing party refused a fair offer.
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parents in ontario have a legal obligation to financially support their children. however, that obligation may end if a child aged 16 or older voluntarily withdraws from parental control. understanding when this exception applies can have a major impact on whether support is payable.
what does “withdrawn from parental control” mean?
under section 31(2) of ontario’s family law act (fla), the obligation to pay child support does not extend to a child over 16 who has withdrawn from parental control. this provision can release parents from paying support if the child has voluntarily chosen independence and is no longer under either parent’s guidance or authority.
when does this rule apply?
a parent may no longer be required to pay support if the child:
is 16 years of age or older, and
has voluntarily left the parental home, and
is no longer under the guidance or financial care of either parent
ball v. broger (2010): even though the father provided financial help, the daughter was not under his control—he had no involvement in her education or health decisions.
what is considered “parental control”?
parental control means more than just financial support. it includes:
living in the parental home
receiving guidance, supervision, or emotional support
following parental rules (curfews, school expectations, etc.)
lyttle v. lyttle (1992): a child remains under parental control if at least one parent is providing emotional or financial support within reasonable expectations.
voluntary vs. involuntary withdrawal
this is the key factor. courts distinguish between:
voluntary withdrawal (the child chooses to leave for independence)
involuntary withdrawal (the child is forced out or leaves due to abuse or untenable conditions)
haskell v. letourneau (1979): only clear, voluntary withdrawal ends the parent’s support obligation.
lynch v. lynch (2000): child fled due to abuse—support continued because withdrawal was not voluntary.
burden of proof: who must show what?
there’s conflicting case law, but typically:
the parent claiming the child has withdrawn must prove it
if withdrawal is proven, the child may then need to prove it was not voluntary
fitzpatrick v. karlein (1994): the court said the child must prove the situation was “so unreasonable” they had no choice but to leave.
bertram v. bertram (1994): fault-finding should be avoided—focus on objective evidence.
living independently ≠ automatic withdrawal
just because a child moves out doesn’t mean support ends.
giess v. upper (1996): daughter lived with her child in her mother's home. court found she was still under parental control because the mother helped with child care and house rules.
martin v. taylor (2008): the child lived elsewhere but was still dependent on parents for guidance and financial help.
what if the child is still in school?
being enrolled in full-time education generally supports continued entitlement to child support—unless the child has truly withdrawn from parental control.
savory v. burke (2012): even with poor attendance, the court found child remained entitled to support while enrolled full time.
morden v. pippy (2016): child left to live with girlfriend but stayed in school. court found withdrawal from parental control occurred when he moved out and became functionally independent.
special cases
children with children of their own
having a baby does not automatically end child support entitlement.
courts assess whether the young parent is still under parental guidance or care.
mcnulty v. mcnulty (2005): support continued even after daughter had a child, because she remained dependent and lived at home.
youth in treatment or group homes
if parents are still involved and financially responsible, support may still be payable.
j.c.m. v. k.c.m. (2016): daughter in treatment was voluntarily there and financially supported by parents. court ruled she had not withdrawn from parental control.
offers to return home
if a parent invites a child to return, that alone may not prove control or negate the child’s entitlement.
jamieson v. bolton (1995): court found child didn’t withdraw voluntarily—even though the parents said he could return.
chilvers v. chilvers (1982): child left due to emotional conflict. later offer from father didn’t negate original involuntary departure.
key takeaways for clients
you must be 16 or older to invoke “withdrawn from parental control.”
withdrawal must be voluntary and complete—from both parents.
courts require clear evidence. emotional abuse, safety concerns, or mental health needs can mean support continues.
a child’s return to full-time school may revive support entitlement, even if they had previously withdrawn.
withdrawn from parental control ontario
child support over 16 years old ontario
child left home no longer eligible for support
family law act section 31(2)
voluntary vs involuntary withdrawal child support
can my child lose child support if they move out?
support for 17-year-old child ontario
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when are adult children entitled to child support?
under ontario family law and the federal divorce act, a "child of the marriage" includes a child over the age of majority (18 in ontario) who cannot withdraw from parental charge due to illness, disability, or other cause—which can include education.
legislative foundation
s. 15.1 of the divorce act allows courts to order support for children of the marriage.
s. 2(1) defines a child of the marriage to include adult children who are still under parental charge for acceptable reasons such as post-secondary education or illness.
key factors courts consider
child support for adult children is not automatic. courts consider a range of factual and discretionary factors:
the farden factors (as expanded in menegaldo v. menegaldo, 2012 onsc 2915)
is the child enrolled in school full-time or part-time?
does the child have a reasonable education and career plan?
is the child applying for loans, bursaries, or scholarships?
is the child contributing through part-time work?
is the child demonstrating academic success?
are there special circumstances (e.g. mental health, disability)?
do the parents have financial capacity?
has the child unreasonably terminated the relationship with a parent?
courts weigh these factors holistically—not as a checklist.
educational status and support
high school students over 18
children completing high school after turning 18 may still qualify if they remain financially dependent.
example: in colford v. colford, support continued for a child over 18 completing high school while preparing for university.full-time vs. part-time studies
support may be ordered even for part-time students where circumstances justify it—such as illness, learning disabilities, or the need to work part-time.
example: in wood v. wood, a student with learning difficulties attending part-time remained a child of the marriage.post-secondary and trade programs
students pursuing university, college, or professional programs are often entitled to continued support—especially when performing well or pursuing a clear career goal.
example: in j.l.s.c. v. c.r.c., the court approved support for a student enrolled in a hairstyling program after leaving university.postgraduate education
while more rare, courts have granted support for professional or graduate-level degrees when the child remains dependent.
special circumstances
breaks in education
temporary interruptions (e.g. illness, family issues) may not disqualify a child from being considered dependent.
adult children with children of their own
even where the adult child is a parent, courts may order support if they live at home and are pursuing education.
example: in reidy v. reidy, a teenage mother remained a child of the marriage while finishing high school.children living away from home
children attending school out of town may still be “under parental charge” if they return home for holidays and rely financially on parents.
example: in damphouse v. damphouse, support continued for a child studying overseas.rejection of the payor parent
courts are cautious about terminating support based on estrangement unless the child has unilaterally and unjustifiably ended the relationship.
example: in nafar-ross v. raahemi, a daughter’s rejection of her father was not enough to terminate support, given the complex family background.burden of proof and evidentiary requirements
the parent seeking continued support must prove the child is still dependent. courts require:
proof of school enrollment
transcripts or academic records
budgets showing living and educational costs
evidence of scholarships, loans, and earnings
disclosure of the child's employment history or capacity
example: in bilodeau v. bilodeau, the mother’s lack of evidence on her daughters’ education and finances led the court to deny support.
when support may be denied
courts may refuse or terminate support if:
the child is no longer pursuing education seriously
the child is financially independent or employed full-time
the child refuses to apply for available financial assistance
the child’s dependence is due to personal lifestyle choices (e.g. pursuing a hobby or traveling)
the relationship with the payor parent has been severely and unreasonably broken off
best practices for parents navigating adult child support
for parents seeking support:
gather academic transcripts and proof of full-time enrollment
document career plans, course schedules, and education-related expenses
demonstrate the child’s dependence (living at home, relying on parental funding)
show the child is making reasonable progress toward independence
for payor parents:
keep records of communication and efforts to maintain a relationship
review the child’s academic progress and education plans
consider applying for a variation if the child is not in school full-time or is working full-time
request disclosure of scholarships, bursaries, and employment income
for both parents:
consider including post-secondary education expectations in the separation agreement
maintain transparency and updates on educational progress
collaborate on reasonable financial contributions from both parties and the child
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under section 10 of the child support guidelines, a parent may ask the court to order a different amount of child support than the usual guideline amount—but only if they can prove undue hardship.
key points:
either the payor or the recipient can make an undue hardship claim
undue hardship must be more than financial difficulty—it must be exceptional, excessive, or disproportionate
even if hardship is proven, support may not be reduced if the claiming parent’s household has a higher standard of living
the legal test for undue hardship
the legal test has three parts:
the parent must show circumstances that create undue hardship
they must show their household standard of living is lower than the other parent’s
if both are proven, the court has discretion to adjust support based on the means and needs of both parties
burden of proof
the parent making the claim has the burden of proof and must provide detailed evidence, including:
financial statements
debt documentation
proof of parenting expenses
household income and expenses
common grounds for undue hardship
1. unusually high debts
must be:
significant
reasonably incurred before separation or to earn a living
not enough: personal loans from family with no documentation, or debts acquired post-separation for lifestyle purposes.
2. high costs to exercise parenting time
expenses for parenting time can qualify, but they must be exceptionally high and not self-inflicted (e.g. voluntary relocation).
3. legal duty to support others
courts may recognize hardship when the parent is supporting:
a child from another relationship
a dependent adult or ill spouse
others under a court order or separation agreement
4. other special circumstances
may include:
health conditions
being recently released from prison
extraordinary cost of living in another country
but courts are cautious. any circumstance must be as serious as those listed in section 10(2).
when courts reject undue hardship claims
undue hardship claims often fail. here’s why:
debts not proven: no legal obligation to repay or no link to family support
expenses are self-inflicted: lifestyle choices or career changes
lack of evidence: no financial statements, no details on debt or access costs
higher standard of living: the claimant has more resources or a wealthier household
key case: smith v. reynolds, 2020 onsc 4459
the father’s claim was denied for lack of evidence. although he had debts, he failed to prove they were valid or connected to supporting his children.
when undue hardship is accepted
courts have accepted claims where:
debts were large, legitimate, and tied to family needs
parenting time required costly travel
there was a substantial financial imbalance despite the parent’s efforts
key case: sherbo v. sherbo, 2021 abqb 76
support was reduced 50% due to high debts and a lower household standard of living. the father had documentation of his income and expenses, unlike the mother.
standard of living comparison
even if a parent proves hardship, the claim fails if their household standard of living is higher than the other parent's.
this includes the income and benefits of all adults in the household (e.g., new partners, extended family if supporting).
the court may use schedule ii of the guidelines to compare households.
best practices for parents facing undue hardship
for parents seeking a reduction:
gather documentation (debts, income, expenses)
show how the hardship is linked to support obligations
demonstrate a lower standard of living
plead undue hardship properly—mention it in court filings
for recipient parents opposing a claim:
challenge vague or undocumented debts
emphasize the payor’s lifestyle, partner income, or spending patterns
show your own financial challenges
general advice:
hardship must be truly excessive, not just inconvenient
courts favor consistency with the child support tables
legal advice is key when pleading or defending an undue hardship claim
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ontario’s child support laws distinguish between split parenting time and shared parenting time, each governed by a specific section of the child support guidelines.
split parenting time (section 8): when each parent has the majority of parenting time with one or more of the children. support is calculated by offsetting the table amounts each parent would otherwise pay.
shared parenting time (section 9): when each parent has the child at least 40% of the time over the course of a year. if this threshold is met, courts must consider not just table amounts, but also cost-sharing and each parent’s means and needs.
what is the 40% threshold?
to qualify as shared parenting, a parent must have the child at least 40% of the time annually. this includes time spent:
sleeping
at school or daycare (if the parent is responsible during that time)
during holidays and weekends
with third parties, if the parent remains responsible
key case: froom v. froom, [2005] o.j. no. 507
the ontario court of appeal confirmed that there is no one method to calculate time. courts should avoid rigid formulas and instead consider whether parenting is truly shared in spirit and practice.
calculating parenting time: approaches and debates
1. days-based calculation
146 days per year = 40% of time
often used when overnight access and daily care are clearly structured
focuses on full or half-days with the child
2. hours-based calculation
3,504 hours per year = 40%
considered more accurate when parenting time varies day to day
often used where court orders set clear pick-up/drop-off times
3. holistic or qualitative approach
focuses on the spirit of shared parenting, including:
who buys clothes, books, food
who attends doctor visits or extracurriculars
the role of each parent in the child’s daily life
key case: mehling v. mehling, 2008 mbca 66
courts must consider not just the number of hours or days, but also the quality and nature of time spent with the child.
school and daycare time: who gets the credit?
generally, school or daycare time is credited to the parent who is responsible for the child during that period.
if one parent drops off and picks up, they may be credited with that school time.
however, courts vary on this point depending on case facts.
key case: maultsaid v. blair, 2009 bcca 102
school time is not considered “neutral.” it counts toward the parent who is legally and practically responsible during school hours.
when the 40% threshold is not met
if a parent has the child less than 40%, full table child support applies. even small shortfalls—e.g. 38%—do not qualify under section 9.
key case: wilkinson v. wilkinson, 2008 onjc 96
the father had the children only 37% of the time. the court ruled section 9 was inapplicable, and support was ordered based on full table amounts.
shared parenting time and financial impact
when section 9 applies, the court must balance:
table amounts for each parent
increased costs of maintaining two homes
the financial realities of both households
this can lead to:
set-off payments
no support payable by either party (in rare cases)
support adjustments based on income disparity
onus of proof and evidence
the burden of proof lies on the parent claiming that they meet the 40% threshold. they should present:
calendars or schedules
parenting plans or court orders
records of pickups, overnights, and school involvement
key case: zychla v. chuhaniuk, 2022 onsc 6884
the father failed to provide sufficient evidence of parenting time over 40% and continued to pay table support.
key takeaways on the 40% rule
no fixed formula: time may be calculated using hours, days, or a combination of both
quality matters: courts consider the overall parenting involvement, not just numbers
precision is essential: even small percentage differences can affect support
legal advice helps: navigating section 9 can be complex and requires proper documentation
best practices for parents navigating shared parenting and support
for parents seeking section 9 relief:
maintain detailed records of time spent with the child
document school involvement, activities, and caregiving responsibilities
ensure parenting schedules are followed and consistent
for parents opposing a 40% claim:
request proof of actual time in care, not just theoretical access
emphasize who manages school, medical, and daily responsibilities
consider financial implications and pursue set-off where justified
general advice:
build clear, enforceable parenting plans
understand how time is calculated and what counts
don’t assume shared parenting automatically lowers support—proof is key
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temporary care and custody hearings are critical early stages in child protection cases in ontario. these proceedings determine where a child will live immediately after being apprehended by a children’s aid society (cas), and they involve fast timelines and high stakes. if you're dealing with child protection services, here's what you need to know.
child protection timelines in ontario
under section 46(1) of the cfsa, if a child is apprehended by a cas, the matter must go to court within five days, even if the fifth day is a holiday. failure to meet this deadline can result in the dismissal of the cas’s application (see kenora-patricia child and family services v. j.g., [2001] o.j. no. 2290).
within this five-day window, one of the following must occur:
a protection hearing begins
the child is returned to the person legally entitled to custody
a temporary care agreement is reached
if a full hearing is not immediately held, an interim order is made on a "without prejudice" basis, allowing a short-term decision while the matter is adjourned.
custody during adjournment
under section 51(2) cfsa, the court can:
return the child to the person who had care prior to apprehension
return the child under society supervision with conditions
place the child with someone else, with the original caregiver’s consent
place the child in society care
the court must always consider the least intrusive option that still protects the child (cas region of halton v. j.s., 2013 oncj 608).
the test for removing a child from parental care
before removing a child, the court must be satisfied that:
there’s a real risk of harm to the child, and
the child cannot be protected by returning to the parent even with supervision.
this test is grounded in the principle of minimal state intervention and must be supported by credible and trustworthy evidence (children's aid society of ottawa-carleton v. t., 2000 canlii 21157).
notably, the test applies even if only one parent presents a concern (cas algoma v. s.m.m., 2014 oncj 12).
preference for relative or community placement
section 51(3.1) cfsa and case law (cas of hamilton v. b.d., 2012 onsc 2448) emphasize the importance of placing children with relatives or within their community. this is especially significant for aboriginal children, whose cultural and community ties are prioritized (cas of sudbury and manitoulin v. b.(j.), 2007 oncj 137).
understanding “charge” of a child
the term "charge" means more than physical custody. it implies authority and responsibility, usually based on a stable caregiving relationship. both parents may be considered to have “charge,” even if they live apart (ccas of toronto v. w.i., 2014 oncj 62).
access during the adjournment period
when a child is not placed with the original caregiver, courts can grant access visits under section 51(5) cfsa. courts consider:
the best interests of the child
the goal of maintaining family ties
the need for proportional restrictions only when necessary
the default shouldn't be supervised access unless there is a clear risk (cas toronto v. t.-j.m., 2010 oncj 701).
courts can also order a society to pay transportation costs to ensure access happens (cas niagara v. l.s., [2009] o.j. no. 46).
evidence required at temporary care and custody hearings
evidence is typically submitted by affidavit, though hearsay is admissible under a relaxed standard (rule 14(19) flr and section 51(7) cfsa). the court may act on any credible and trustworthy evidence.
importantly, courts scrutinize society affidavits. they must be:
focused on current, relevant risks
free from speculation or conjecture
proportional in tone and content
(cas toronto v. m.a., 2002 canlii 45665)
terms and conditions under supervision orders
when a child is returned under supervision (sections 51(2)(b) or (c)), courts can impose terms and conditions on:
the parents
the child
others involved in the child's care
the society (but not requiring it to provide financial aid)
these conditions must address specific, evidenced risks. generic terms (e.g., “ensure school attendance”) are not appropriate unless the issue is actually in dispute (cas toronto v. t.m., 2010 oncj 701).
courts must balance child protection with avoiding unnecessary intrusion into family life (catholic cas of toronto v. m.l.r., 2011 oncj 652).
best practices for parents in temporary care and custody cases
if you're involved in a child protection proceeding, consider the following tips to navigate the process:
act quickly – the law moves fast. attend all hearings and comply with all court orders.
understand your rights – both parents may have rights, even if separated or not cohabiting.
prepare evidence early – your lawyer will need affidavits and supporting documents quickly.
stay child-focused – show that your priority is the child’s well-being and safety.
engage with the society – cooperation can lead to less restrictive interim placements.
explore relative placements – if possible, propose family members or community contacts as alternative caregivers.
be cautious with access terms – supervised access isn't automatic; advocate for proportional access if appropriate.
follow all supervision conditions – failure to do so can harm your case going forward.
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parental alienation occurs when one parent—intentionally or unintentionally—damages or interferes with a child’s relationship with the other parent. this is often seen in high-conflict family breakdowns. the child may develop unjustified negative feelings toward the alienated parent, leading to rejection or refusal of contact.
this behaviour is not always the result of abuse by the rejected parent. sometimes, the rejecting parent fosters this rift through denigration, false allegations, or limiting access.
recognizing parental alienation in court
ontario courts focus on the best interests of the child when determining custody and access. courts recognize that it is generally in a child’s best interest to have a relationship with both parents, and they view alienating behaviour seriously.
indicators of parental alienation include:
a campaign of denigration by the child
irrational or exaggerated reasons for rejecting the other parent
no ambivalence toward parents (one is “all good,” the other “all bad”)
the child parrots the alienating parent’s views
guilt-free cruelty or rejection toward the alienated parent
parental alienation and custody decisions
1. ability to support the child’s relationship with the other parent
a parent’s willingness to facilitate contact with the other parent is a major factor under section 16(10) of the divorce act.
key cases:
islam v. rahman – interference with access worked against the interfering parent.
sterling v. sterling – custody awarded to the parent who promoted the other parent’s role.
soobotin v. soobotin – alienation influenced the custody outcome.
2. material change in circumstances
parental alienation can be considered a material change, justifying a variation in custody orders.
key case:
rogerson v. tessaro – custody transferred from alienating mother to father.
legal remedies for alienating behaviour
a. transferring custody
courts may transfer custody to the alienated parent if:
the alienation is severe,
previous efforts to address it failed, and
the change is in the child’s best interest.
examples:
fiorito v. wiggins – mother lost custody after years of contempt and alienation.
starzycka v. wronski – transfer of custody due to long-standing interference.
n.l. v. r.l. – no access granted to mother pending therapy and court review.
b. orders to save access
when custody transfer isn't appropriate, courts may increase access, order therapy, or impose conditions to rebuild the parent-child relationship.
examples:
lopez v. dotzko – mother’s access increased after father’s alienation was proven.
groenewegen v. groenewegen – father’s access expanded due to mother’s negative influence.
c. counselling and reunification therapy
courts often order individual or family therapy to address the effects of alienation and promote healing.
d. contempt of court
a parent who repeatedly violates access or custody orders may be held in contempt. penalties range from fines to custody transfers.
examples:
eintoss v. starkman – mother held in contempt and father’s access increased.
a.g.l. v. k.b.d. – mother fined and denied access due to repeated order breaches.
how courts assess children's wishes
while children's preferences are considered, courts scrutinize them closely in alienation cases to determine whether those views were unduly influenced.
best practices for parents facing parental alienation issues
1. document everything
keep detailed records of access denial, negative statements, and missed visits.
2. seek legal remedies early
don’t wait for the situation to escalate—apply for enforcement or variation of orders when problems arise.
3. avoid retaliatory behaviour
remain child-focused. courts favour parents who model respectful co-parenting and prioritize the child’s right to a relationship with both parents.
4. request assessments when needed
ask for an assessment by the office of the children’s lawyer or a court-ordered custody and access evaluator.
5. focus on reintegration, not blame
seek therapy or reunification programs where possible. courts often look for constructive solutions before ordering drastic changes.
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when parents separate or divorce in ontario, one of the most important decisions they face is how to divide parenting responsibilities. joint custody is one option the courts may consider. this guide explains what joint custody means under ontario law, when it may be granted, and the factors that influence a court’s decision — all from a child-focused legal perspective.
legal basis for joint custody in ontario
under the children’s law reform act (clra) and the divorce act, both parents have equal rights to custody unless a court orders otherwise. section 24 of the clra states that all custody decisions must be made in the best interests of the child. similarly, the divorce act directs the court to promote maximum contact between the child and each parent, as long as it aligns with the child’s best interests.
what does joint custody mean?
joint custody refers to both parents sharing the legal decision-making responsibilities for the child. this includes major decisions about education, health care, and religious upbringing. it does not necessarily mean that the child lives equally with both parents — that arrangement is called shared custody or shared parenting.
shared custody vs. parallel parenting
shared custody: the child lives with each parent at least 40% of the time. this arrangement requires high levels of cooperation and communication.
parallel parenting: a form of joint custody used when parents are in high conflict. each parent makes decisions independently when the child is with them. major decisions may be divided (e.g., one parent handles health, the other handles education).
when do ontario courts order joint custody?
joint custody may be ordered if:
the parents have shown a history of effective communication
both parents are considered fit and involved caregivers
joint custody is in the best interests of the child, even in the face of some conflict
examples of when joint custody is appropriate:
parents who co-parent effectively despite some communication difficulties
a joint custody order is needed to prevent one parent from excluding the other
the child has a strong bond with both parents and is thriving in a shared arrangement
situations where joint custody is not appropriate:
evidence of domestic violence or abuse
complete breakdown in communication
a parent is actively attempting to alienate the child from the other parent
the child has special needs and requires highly coordinated care
key ontario decisions on joint custody
kaplanis v. kaplanis (2005): courts require real evidence of the ability to communicate; mere hope that communication will improve is not enough.
ladisa v. ladisa (2005): joint custody upheld despite high conflict because parents had shown cooperative behaviour in emergencies.
ursic v. ursic (2006): joint custody with parallel parenting was appropriate despite ongoing tension.
j.b. v. a.b. (2006): a parent's past abusive behavior did not automatically preclude joint custody when they had demonstrated change.
guiding principles from lower courts
lower courts consider:
the parties' parenting history
their cooperation since separation
whether an award of joint custody would help maintain balance and prevent one parent from dominating decision-making
courts are careful not to demand perfect cooperation, only that communication is "workable" and "adequate" to meet the child’s needs.
best practices for parents seeking joint custody
show a pattern of cooperation – demonstrate that you can work with the other parent on child-related issues.
focus on the child’s well-being – avoid blaming or criticizing the other parent.
be realistic – if communication is poor, consider proposing a parallel parenting plan.
support access and parenting time – courts favor parents who encourage the child’s relationship with both parents.
put agreements in writing – having a clear parenting plan or decision-making framework helps avoid misunderstandings.
consult professionals when needed – social workers, parenting coordinators, or family lawyers can assist in developing a workable custody plan.
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when parenting time or custody is disputed in ontario family law, the court may order a psychological or social work assessment under section 30 of the children’s law reform act (clra). these assessments are expert evaluations of the needs of the child and the parents' capacity to meet those needs.
legal authority for custody assessments
section 30 of the clra allows a judge to:
appoint a qualified professional to assess the child and the parents
order assessments with or without a party’s request
require all parties, and sometimes third parties, to participate
direct how and when the report is prepared
allocate costs, unless it causes financial hardship
though the divorce act doesn’t contain a similar provision, courts have used their inherent jurisdiction to order assessments in divorce cases as well.
purpose of a custody assessment
an assessment provides the court with:
a professional opinion on parenting capacity and child welfare
insight into family dynamics, including issues of conflict or alienation
the child’s preferences, needs, and possible vulnerabilities
assessments can help judges understand the broader context of the family and support decisions that align with the best interests of the child.
when will a court order an assessment?
courts do not order assessments routinely. key factors include:
evidence of clinical issues such as mental health concerns or abuse
ongoing high conflict that impairs parenting
whether the parties can make parenting decisions jointly
the presence of serious behavioural issues in the child
narrow view (high threshold):
some courts follow the linton v. clarke approach: assessments should be ordered only where clinical issues exist—meaning significant emotional or psychological factors that the court can’t assess without expert help.
broad view (lower threshold):
other courts, such as in glick v. cale, hold that assessments can be ordered where they may significantly assist the court—even without clinical issues.
key cases where assessments were ordered
glick v. cale (2013): high conflict, decision-making deadlock, and unclear parenting capacity justified the assessment.
ryan v. scott (2013): court found ongoing conflict, parental alienation, and stress on the child as justification.
stewart v. stewart (2006): serious allegations about parental behaviour warranted expert insight.
osmak-bonk v. bonk (2004): court recognized emotional manipulation as a clinical issue.
when assessments are refused
morton v. morton (2015): no clear evidence that assessment was necessary.
sheikh v. sheikh (2004): no clinical issue and assessment would delay proceedings.
baillie v. middleton (2012): child’s behavioural issues were not enough to justify assessment.
courts will not order an assessment just because a party wants one or as a tactic to delay proceedings.
what does the assessor do?
the assessor:
evaluates the family’s circumstances through interviews and observations
prepares a report that includes factual findings and sometimes recommendations
may be called to testify at trial
the assessor’s role is advisory—the judge makes the final custody decision.
procedural fairness in assessments
both parties have the right to cross-examine the assessor, and courts require the assessor to be impartial. the assessment must not violate principles of fairness, such as failing to disclose sources or biasing one party.
best practices for clients dealing with custody assessments
understand the purpose – assessments help the court understand the child's best interests; they are not tools for proving a parent “right” or “wrong.”
cooperate fully – be honest, respectful, and consistent during the assessment process.
seek legal advice early – an experienced family lawyer can guide you through whether to request or oppose an assessment.
consider alternatives – sometimes involving the office of the children's lawyer may be a better and less intrusive option.
document concerns – if you believe there are clinical issues (e.g., mental health, abuse), gather supporting evidence.
balance cost and benefit – assessments are expensive and can delay proceedings. courts weigh whether the value of the report justifies these burdens.
stay focused on the child – ultimately, courts are concerned with what arrangement best supports the child’s health, stability, and development.
this summary highlights the importance of custody assessments in ontario family law and provides a framework to help parents understand when expert evaluations are appropriate, useful, and in the best interests of the child.
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in ontario, courts can set aside domestic contracts—including cohabitation agreements, marriage contracts, and separation agreements—under section 56(4) of the family law act (fla). this section outlines three key grounds: failure to disclose significant assets or debts, failure to understand the nature or consequences of the agreement, and common law principles like duress, undue influence, and unconscionability.
this page explains when these contracts may be set aside, what courts look for, and how clients can protect their interests when entering or challenging an agreement.
grounds for setting aside a domestic contract under section 56(4) fla
1. failure to disclose significant assets or debts – s.56(4)(a)
this ground is most frequently relied upon. parties must disclose all significant financial assets and liabilities existing at the time of the agreement. failure to do so can justify setting the contract aside.courts consider whether:
the undisclosed item was significant in the context of the couple’s financial picture
the non-disclosure was deliberate or misleading
the other party had some general awareness of the asset
the non-disclosure affected the decision to sign the agreement
the party seeking to set the contract aside took steps to obtain disclosure
in giffin v. giffin, 2018 onsc 4104, the court set aside a separation agreement after the husband failed to disclose ongoing negotiations to buy out a business interest, which materially affected the valuation of one of the couple's major assets.
in logan v. logan, 2018 onsc 2032, the wife lacked both adequate disclosure and the ability to understand the implications of a complex financial settlement. the court found the agreement unconscionable and set it aside.
courts may also decline to set aside agreements where the missing disclosure was not significant or where the party seeking to overturn the agreement knew or could have learned the truth. in tozer v. tassone, 2019 onca 285, the husband’s claim was rejected due to lack of supporting evidence and prior acknowledgment of sufficient disclosure.
2. failure to understand the nature or consequences – s.56(4)(b)
this ground applies when a party did not appreciate the legal effect of what they were signing. it is broader than the common law doctrine of non est factum and does not require that the misunderstanding be reasonable.factors that weigh in favor of setting aside include:
limited education or language barriers
absence or inadequacy of legal advice
lack of time to review or consider the agreement
complex or one-sided terms that were not explained
in rick v. brandsema, 2009 scc 10, the supreme court of canada emphasized the importance of full disclosure and negotiation in good faith. procedural fairness is essential to ensure genuine understanding.
in stupka v. stupka, 2012 onsc 1133, the court found that the wife’s limited english, the short timeline before the wedding, and the husband’s control over the process supported setting aside the marriage contract under this section.
3. common law grounds – s.56(4)(c)
this catch-all provision allows a contract to be set aside on traditional contract law principles such as:duress: where one party is pressured or threatened into signing
undue influence: where one party overbears the will of the other, especially in relationships of dependency
unconscionability: where the agreement is grossly unfair and formed under conditions of inequality
material misrepresentation: knowingly giving false information
non est factum: signing something fundamentally different than what was believed
in virc v. blair, 2017 onca 394, the court found that the husband deliberately overvalued a company at the date of marriage to reduce his equalization obligation. this misrepresentation led to the agreement being set aside under both s.56(4)(a) and (c).
independent legal advice: not required, but critical
while the fla does not mandate independent legal advice (ila), courts often look at whether each party had a fair opportunity to understand and negotiate the contract. ila can protect an agreement from being challenged, but it must be:
provided by a lawyer with no conflict of interest
based on adequate disclosure
meaningful, not just procedural
in shair v. shair, 2016 onca 982, the wife signed the agreement contrary to legal advice. while this usually weakens a challenge, the court still set aside the support waiver due to fairness concerns.
agreements that were upheld despite challenges
courts will not set aside agreements lightly. many cases show that even when disclosure is imperfect, contracts are upheld where:
the parties generally knew each other’s financial situation
legal advice was obtained
there was no evidence of coercion or imbalance
the agreement was substantively fair
for example, in turk v. turk, 2018 onca 993, the court upheld a separation agreement where undisclosed assets were not considered “significant” in context, and where the wife received substantial benefits under the deal.
best practices for clients entering or reviewing domestic contracts
1. provide full, clear financial disclosure
list all assets, debts, income sources, and business interests. attach valuations or statements where possible. don’t rely on verbal summaries.2. don’t skip independent legal advice
make sure each party gets advice from a separate lawyer. if you're the drafting party, offer to cover the other party’s legal fees to ensure the process is protected.3. avoid pressure tactics or rushed timelines
don’t sign contracts immediately before a wedding or major event. give both sides time to reflect, ask questions, and negotiate changes.4. understand what you're signing
insist on plain language explanations. ask your lawyer to walk you through every provision. understand how the contract affects property, support, and other rights.5. keep documentation
store copies of financial statements, communications about negotiations, and confirmation that legal advice was received. this can help defend or challenge a contract later.child support ontario, spousal support waivers, setting aside marriage contracts, financial disclosure family law, separation agreement fairness, family law lawyer ontario, equalization of net family property, common law relationships, domestic contracts enforceability, duress and undue influence, parenting time, best interests of the child
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domestic violence is a central issue in family law cases involving parenting time, custody, child protection, spousal support, exclusive possession of the home, and restraining orders. the presence of abuse can affect nearly every aspect of a family law dispute. courts in ontario assess domestic violence based on legal tests, evidence, and the best interests of the child.
key points:
abuse may be physical, emotional, sexual, or financial
domestic violence is especially relevant in parenting disputes
exposure to violence is a ground for child protection involvement
courts consider whether violence impacts a parent’s ability to care for children
documented patterns of coercive control can influence decisions on access, support, and possession of the home
types of domestic violence recognized in law
ontario courts recognize four main categories:
physical abuse
includes pushing, slapping, hitting, choking, and other forms of physical forceemotional abuse
includes name-calling, threats, destruction of property, intimidation, and isolationsexual abuse
includes forced sexual contact, humiliation, and use of sex to control a partnerfinancial abuse
includes withholding access to money, denying essentials, and controlling finances
coercive control—a repeated pattern of dominance and intimidation—is now a central legal concept, especially in parenting and access decisions.
how courts assess domestic violence in parenting cases
domestic violence is a factor in custody and parenting time under the children’s law reform act and divorce act. courts assess whether abuse:
places the child at risk of harm
impacts the parenting ability of the abusive parent
undermines cooperation between parents
parenting time is awarded based on the best interests of the child. violence against a parent can harm children even if they are not directly targeted.
key case: macneil v. playford, 2008 nssc 268
the court held that domestic violence reflects poor parenting skills and affects decisions about primary care.supervised access and safety concerns
if a parent has a history of abuse, courts may allow access but order supervision to protect the child and the other parent. even if the child is afraid or resists contact, courts may still permit supervised visits.
key factors that lead to supervised or denied access:
repeated harassment of the custodial parent
history of violence or substance abuse
lack of relationship between parent and child
child’s fear of the abusive parent
key case: merkand v. merkand, 2006
long-term supervised access was upheld due to ongoing concerns about safety.child protection and exposure to abuse
exposing a child to domestic violence may lead to a child protection finding under the child, youth and family services act. children do not have to be directly harmed—witnessing or being around violence is enough.
common outcomes include:
society involvement
supervision orders
removal from the home
permanent placement in kinship or foster care
key case: cas of ottawa v. m.p., 2014 onsc 1551
the court accepted that exposure to violence alone caused emotional harm and justified protective intervention.spousal support and misconduct
spousal misconduct is not usually a factor in deciding support. however, abuse may affect the amount if it leads to long-term financial hardship for the victim.
abuse may be relevant where:
it delays or prevents a spouse’s financial recovery
it creates psychological conditions that impact employability
key case: leskun v. leskun, 2006 scc 25
the supreme court confirmed that abuse is relevant only if it affects a spouse’s ability to become self-supporting.equalization and division of property
violence is not a ground for altering equalization unless it involves financial misconduct. under the family law act, equalization is a math-based calculation. emotional or physical abuse alone will not justify an unequal division.
key point: only economic misconduct (e.g., reckless depletion of assets) can support a deviation from equalization under section 5(6) of the act.
exclusive possession of the matrimonial home
a spouse may apply for exclusive possession of the home if domestic violence makes cohabitation unsafe. the court considers both physical and psychological abuse.
factors that support exclusive possession:
history of intimidation or harassment
fear for safety
inability to share space without conflict
key case: kutlesa v. kutlesa, 2008
the court granted exclusive possession due to psychological abuse and emotional harm.restraining orders in family law
restraining orders protect individuals from ongoing harassment or fear of harm. fear may be physical or psychological.
grounds for a restraining order include:
threats or stalking
intimidation
past violence or unpredictable behavior
restraining orders can be made under the family law act, children’s law reform act, or child, youth and family services act.
key case: tiveron v. collins, 2017 onca 462
the court confirmed that psychological harm alone is sufficient to justify a restraining order.criminal convictions and their effect in family court
a criminal conviction for domestic violence can be used in family court as evidence of abuse. this includes sentencing, no-contact orders, and past guilty pleas.
rules:
a conviction is prima facie proof of the offence
it can be rebutted with evidence, but courts rarely allow relitigation
an acquittal does not prove innocence in civil proceedings
key case: filiatrault v. briere, 2012 onsc 672
the court awarded custody to the father due to the mother’s criminal conviction for domestic violence.best practices for clients dealing with domestic violence
for victims:
document all incidents (photos, texts, medical reports, police reports)
request supervised access or exclusive possession when appropriate
consult with a lawyer early in the process
consider safety planning and community support services
for accused parents:
take responsibility if appropriate and seek counselling
avoid using court proceedings to control or harass the other parent
provide third-party evidence to rebut allegations
comply with access orders and court directions
for both parties:
focus on the best interests of the child
avoid exposing children to conflict or unsafe environments
cooperate with court professionals and child protection agencies
understand that parenting time and financial support are separate legal issues
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under the family responsibility and support arrears enforcement act (frsaea), support deduction orders are mandatory for child and spousal support. payments are collected by the family responsibility office (fro) and deducted from the payor’s wages or benefits.
when can a support deduction order be suspended?
a court may suspend the operation of a support deduction order in only two situations:
agreement between the parties: both parties consent, and the payor posts adequate security (typically equivalent to four months of support)
unconscionability: the court finds it would be unreasonably excessive to require payment through a support deduction order, even without the recipient’s consent
this is governed by section 28 of the frsaea.
what does "unconscionable" mean in this context?
the legislation does not define "unconscionable," but courts have interpreted it to mean “unreasonably excessive” or “patently unfair.”
importantly, the court cannot consider:
that the payor has a good payment history
that the payor hasn’t had a chance to show voluntary compliance
that the parties agreed to suspend the deduction (unless supported by security)
that the support amount might later be varied
case law: when courts suspended deduction orders
rouillard v. rouillard (1992): court found it unconscionable to enforce support through automatic deduction when the payor had already secured one year of payments via trust funds.
kardas v. kardas (1992): court suspended deductions where support was already secured from the payor’s share of property proceeds and ongoing enforcement would create undue hardship.
johnston v. johnston (1997): suspension granted where the adult child’s independence meant entitlement to support was under review.
case law: when courts refused to suspend
fraser v. lewandowski (1999): court refused to suspend deductions where the child was still dependent and the payor had stopped paying support unilaterally.
dancsecs v. dancsecs (1994): even after reducing the support amount, the court refused to suspend the deduction order.
how to apply for suspension
to request a suspension, the payor must:
bring a motion to court under s.28(3)(a) of the frsaea
provide detailed evidence of why continued deductions would be unreasonably excessive
in agreement cases, post security equivalent to four months of support in approved form (bank draft, money order, trust cheque)
posting security in lieu of deductions
if both parties agree not to use the fro to enforce payments, the court may approve the suspension only if the payor posts security. this is governed by ontario regulation 167/97, which outlines acceptable forms of security and required documentation.
best practices for dealing with support deduction orders
don’t stop payments unilaterally: always seek a court order before altering or suspending support deductions.
gather detailed financial evidence: include proof of hardship or other unconscionable circumstances.
offer security: if possible, propose to secure future payments with funds or assets.
communicate with the other party: mutual agreement makes suspension easier but must comply with regulations.
monitor adult children’s support status: if the child is financially independent, you may apply to vary or terminate support.
act quickly if circumstances change: unemployment, health issues, or lump-sum payouts may justify seeking relief.
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under ontario’s family law act (fla), spouses are generally entitled to an equal division of net family property after separation. however, in rare and extreme cases, courts may order an unequal division if equal sharing would be “unconscionable.”
what is net family property?
net family property (nfp) is the total value of each spouse’s assets on the date of separation, minus debts and the value of property owned on the date of marriage. normally, the spouse with the higher nfp pays half the difference to the other.
when can property be divided unequally?
section 5(6) of the family law act
a court may deviate from equal sharing if equalization would be “unconscionable” based on specific criteria, including:
hidden debts at marriage
reckless or bad faith spending
gifts from one spouse to the other
intentional depletion of assets
short cohabitation (under 5 years)
disproportionate family debt
non-domestic written agreements
other unfair property-related circumstances
what does “unconscionable” mean in family law?
the bar is high. the result must “shock the conscience of the court.”
serra v. serra, 2009 onca 105: equalization is only overridden in extraordinary circumstances. “unfair” or “harsh” is not enough.
examples where unequal division was ordered
1. hidden or recklessly incurred debts
spouses who hide debts or run up reckless expenses may lose equalization benefits.
wakelin v. wakelin – husband failed to disclose debts; wife awarded full property.
daciw v. daciw, 2011 onsc 795 – wife used joint credit for gambling after separation.
brar v. brar, 2010 onsc 6330 – husband’s fraud left family penniless; wife owed no equalization.
2. gifts between spouses
if one spouse gives a gift (like money or property) to the other, it may be unconscionable for the giver to share equally in the value.
ward v. ward, 2012 onca 462 – $180,000 gift from wife to husband led to unequal division.
3. short-term marriages (under 5 years)
a disproportionately high payout for a brief marriage may justify unequal division.
abdulhadi v. ahmad, 2019 onsc 215 – 18-month marriage led to reduced equalization.
burden v. burden, 2014 onsc 6319 – 18-month marriage; wife’s claim reduced proportionally.
4. spouse depletes or hides assets
deliberate or reckless depletion of family wealth can lead to unequal division.
laing v. mahmoud, 2011 onsc 4047 – husband’s gambling and debt forced home refinancing.
stetco v. stetco, 2013 onsc 3013 – husband used threats to borrow $135k; wife received more.
dillon v. dillon, 2010 onsc 5848 – husband’s alcoholism and secret debts reduced wife’s payment.
what isn’t considered “unconscionable”?
unequal income or lifestyle alone
emotional misconduct (e.g., infidelity) not tied to financial consequences
general unfairness without asset impact
n.r.i.h. v. m.g.s.h., 2015 onsc 3277 – abuse unrelated to property division didn’t justify unequal sharing.
engel v. engel, 2002 – hardship alone is not enough.
the process for unequal division
calculate each spouse’s nfp.
assess if equalization would be unconscionable under the fla’s s.5(6).
present evidence clearly linked to assets, debts, or financial impact.
the burden of proof is on the spouse requesting unequal division.
keresturi v. keresturi, 2017 onca 162 – unconscionability must be proven objectively.
post-separation conduct and asset value changes
courts may consider changes in property value after separation, but only when:
the impact is extreme or unjust
the result disproportionately affects one spouse
serra v. serra – market-driven losses may support unequal division if severe.
practical tips for clients
keep detailed records of major expenses, gifts, and debts.
disclose all debts and assets during marriage and at separation.
if you suspect depletion or reckless spending, act promptly—delays can affect your claim.
consider a domestic contract to clarify intentions and prevent disputes.
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contact us for expert property division advice
our family law firm helps clients across ontario navigate complex property equalization issues—including applications for unequal division under s.5(6). if you're concerned about fairness in your separation, we’re here to help.
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exclusive possession of the matrimonial home is a powerful legal remedy under ontario’s family law act (fla), allowing one spouse to remain in the matrimonial home after separation — even if they do not legally own it. this remedy ensures stability and protection, especially when children or abuse are involved. below is a plain-language, lawyer-authored summary of the law and key case examples as outlined in legal aid ontario’s detailed internal memo.
what is exclusive possession?
under s. 24(1)(b) of the fla, a court can order that one spouse has exclusive possession of the matrimonial home, meaning they can live there without the other — even if they don’t own it. this order can be temporary or long-term and applies regardless of ownership.
this remedy is not automatic. courts carefully weigh whether it’s justified based on several key factors.
who can apply?
only married spouses can apply under s. 24(1)(b).
common-law partners are excluded from this section, but may apply under different legal doctrines (e.g., support, trust claims, or restraining orders).
once parties are divorced, they no longer qualify as “spouses” under the act.
that said, courts have occasionally granted exclusive possession to common-law spouses based on other factors, such as:
abuse concerns,
children’s best interests,
property ownership,
constructive trust claims.
legal and constitutional validity
the law has been upheld as constitutionally valid (see lamb v. lamb). it coexists with federal divorce law and does not infringe on property rights unfairly. however, it does not apply on first nations reserves, which are governed by federal legislation: the family homes on reserves and matrimonial interests or rights act (fhrmira).
what courts consider: the six-part test (fla s. 24(3))
when deciding whether to grant exclusive possession, courts consider:
best interests of the children
includes emotional wellbeing, school, continuity, and routines.existing support or property orders
financial positions of both spouses
any written agreement between the parties
availability of other housing
any family violence
the “best interests of the child” is often the most influential factor — especially where the child is already living in the home and thriving.
common situations where orders are granted
1. violence or intimidation
courts often grant exclusive possession where there’s physical violence, intimidation, or emotional abuse.
in leckman v. ortaaslan, the father’s hostility toward his daughter justified a temporary order for the mother.
in rofail v. naguib, exclusive possession protected a child from parental conflict that was affecting their mental health.
2. children’s stability and routine
courts aim to avoid disruptions to schooling, friendships, or medical care.
in yeates v. yeates, long-term exclusive possession was granted to a parent caring for two disabled children.
in kloosterman v. kloosterman, continuity was maintained so children could finish school in the same community.
3. conflict and acrimony
high conflict can be psychologically damaging to children, especially when parents remain under the same roof.
in sharma v. sharma, even without physical violence, emotional conflict justified exclusive possession.
in somerville v. olynyk, the live-in nanny’s refusal to work with the father present was decisive.
where orders are refused
not all acrimony justifies exclusive possession.
in houpt v. houpt, the court refused to grant the wife possession, finding the father still a fit parent and both parties equally able to parent the children.
in coffey v. coffey, the mother’s concerns about disruption from moving weren’t enough without evidence of harm.
also, lack of evidence can doom a claim. courts need real proof — especially medical or psychological reports — to justify orders.
role of finances
finances play a critical role. courts weigh each party’s ability to secure alternative housing and may refuse orders that are impractical due to limited income.
in trush v. trush, the husband was granted exclusive possession because he was worse off financially and needed the housing stability.
in cowan v. cowan, even though the wife was less wealthy, she was awarded possession due to abusive behavior by the husband.
when both parties are financially secure, courts have more flexibility to grant possession based on best interests alone (graham v. graham).
common law and de facto possession
while common law spouses can’t apply under s. 24(1)(b), they have other options:
restraining orders (s. 46 of the fla),
support claims under s. 34(1)(d),
constructive trust or unjust enrichment claims,
injunctions to prevent sale or removal.
examples:
rudky v. kaybaki: court granted de facto possession to a common law mother for the children’s wellbeing.
joyce v. o’neill: court allowed continued occupation while trust claims were unresolved.
orders made as part of support
under s. 34(1)(d) of the fla, a court may award exclusive possession as part of a support order, but this is rare and not clearly established for unmarried spouses.
interim and long-term orders
interim exclusive possession is common in emergencies or pending trial.
orders can last until a child finishes school, or even longer in cases involving disability (cassar v. cassar, csecs v. csecs).
some orders are conditional on future reviews, often tied to support compliance (ariyaratne v. ariyaratne).
courts also recognize that keeping the home may be the most economical solution for low-income families (cloutier v. cloutier).
key takeaways
exclusive possession is a powerful but discretionary remedy.
it is only available to married spouses under s. 24(1)(b), but other legal paths exist for others.
the best interests of the children carry the most weight.
domestic violence, conflict, or mental health impacts often tip the balance.
courts avoid granting possession lightly — strong evidence and clear risk are needed.
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after separation, it is not uncommon for one spouse to continue using a joint line of credit. disputes frequently arise when one party withdraws funds without the other’s consent. in ontario, the treatment of these post-separation withdrawals depends on how the money was used and whether it benefited both spouses or only one.
who is responsible for joint debt after separation?
when a joint line of credit remains active after separation, both spouses remain contractually liable to the bank. however, for the purposes of equalization of net family property, the court will examine whether:
the funds were used for the joint benefit (e.g., household expenses, children’s needs)
the funds were used solely for one spouse’s personal benefit
a spouse who uses joint credit for personal gain may be ordered to reimburse the other, particularly if the usage increased shared debt without providing mutual benefit.
key ontario cases on joint credit use after separation
arvai v. arvai (2001): the husband was ordered to indemnify the wife after using a joint line of credit to acquire assets for himself. courts will not allow one spouse to incur debt that burdens the other unfairly.
willman v. willman (2011 onsc 1590): the court imposed a constructive trust on the husband's share of home equity to repay $64,000 withdrawn from the joint line of credit post-separation.
farjad-tehrani v. karimpour (2008): the husband had to reimburse $20,000 taken from a joint line of credit to repay his mother, as it was not a shared expense.
stetco v. stetco (2013 onsc 3103): unequal division of property was ordered after the husband withdrew over $75,000 post-separation without benefit to the wife. the court found it would be unconscionable to make her liable for that debt.
when courts accept joint use as reasonable
sharman v. sharman (2011 onsc 1871): withdrawals shortly after separation were not reimbursable, since they were used for joint expenses and small family loans, and corroborated by witnesses.
morey v. morey (2009): where the parent remaining in the home used the line of credit to cover household expenses, courts delayed addressing reimbursement until final division.
grassie v. grassie (2013): where it was unclear who used the funds, both parties were held jointly liable for the $9,543 increase in debt.
how courts assess use of joint credit
to determine responsibility, courts will consider:
was the money used before or after separation?
was it spent on joint or personal expenses?
is there documentation proving how the money was used?
did the other spouse benefit from the expenditures?
were there any extenuating circumstances, such as coercion or domestic violence?
in singh v. singh (2007), the court awarded occupation rent to the wife where the husband stayed in the home and paid its expenses using joint funds, but did not enhance its value.
unequal division of property and credit abuse
in cases where a spouse misuses joint funds and causes financial harm, the court may apply an unequal division of property under section 5(6) of the family law act. this occurs when an equal division would be unjust or unconscionable.
best practices when dealing with joint credit after separation
close or freeze joint accounts immediately after separation to prevent unauthorized use.
keep detailed records of all post-separation transactions on joint credit facilities.
use funds only for shared obligations unless there is written agreement otherwise.
reimburse your spouse promptly if credit was used for your exclusive benefit.
consider a separation agreement that clearly outlines financial responsibility for debts.
seek a court order if there is evidence of misuse of joint credit.
prepare for unequal division claims if misuse is significant and one party is left with a disproportionate burden.
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in ontario, when spouses separate or divorce, disputes often arise over who should be responsible for debts accumulated during the relationship. many people assume that debts, like property, will be split equally—but that’s not the case under ontario’s family law act. the act provides for the equalization of net family property, not the division of debts. this makes understanding the law—and how courts have interpreted it—critical for anyone dealing with financial separation.
how the family law act treats marital debt
under section 4 of the family law act, each spouse's net family property (nfp) is calculated by subtracting debts and liabilities from the total value of their assets on the valuation date. this calculation determines whether one spouse owes the other an equalization payment.
however, debts themselves are not considered “property.” courts have consistently ruled that while debts can reduce a spouse’s net family property, they cannot be equalized or transferred between spouses through the property division process.
in leppek v. leppek (1991), the ontario general division stated that a debt is not “property” and cannot be shared or assigned to the other spouse. in menage v. hedges (1987), the court emphasized that section 4(2) of the act refers to the "value of property," which implies only positive assets.
the rule is codified in section 4(5) of the act: where a spouse has negative net family property, it is deemed to be zero. this principle was applied in strobele v. strobele, 2006 onca, where the husband's liabilities exceeded his assets, and the court confirmed that his nfp was zero. the result was that no equalization payment was owed to the wife, regardless of the disparity in financial positions.
courts cannot equalize or apportion debt
unless there is a contractual agreement or domestic contract (like a separation agreement), courts do not have jurisdiction to assign one spouse’s debts to the other. in powers v. naston-powers (1990), the husband attempted to seek an "equalization of debts," but the court found no legal foundation for such a claim under the family law act.
jackson v. jackson (1986) also supports this position. professor james mcleod, in his annotation to the case, commented that it “stretches the point” to consider debt as property under the act. more recently, in tremblett v. desjarlais (1995), the court reiterated that debts can be deducted from the nfp calculation, but they cannot be apportioned between spouses outright.
debt in one spouse’s name — who is responsible?
in family law, responsibility for a debt usually lies with the person whose name is on the loan or credit account. this is true even if the debt benefited both parties. in skalska v. romanczuk (1997), the wife used credit cards in her husband’s name to pay for shared expenses. the court held that she could not be held liable to the creditor, and each spouse remained responsible for debts in their own name.
a similar result occurred in imani v. imani (1999), where the wife asked the court to require her husband to contribute to a $6,000 debt she incurred during their marriage. the court dismissed the claim, stating that in the absence of a contractual agreement, one spouse cannot be ordered to indemnify the other for personal liabilities.
in long v. long (1998), the wife sought a ruling that the husband should share responsibility for her $20,000 debt. while the court acknowledged ontario cases rejecting debt equalization, it went further and said the evidence didn't even justify a finding that the debt should be shared.
indirect relief in limited circumstances
although courts won’t divide debt directly, they may consider it in related financial matters—particularly spousal support. in stein v. stein (2002), the husband incurred significant credit card debt in the wife’s name. the court ordered him to pay a lump sum to discharge that debt as part of her interim support, highlighting how wrongful use of a spouse’s credit can influence financial outcomes.
another example is tiveron v. collins (2014 oncj 574), where the court acknowledged a significant power imbalance between spouses. the husband’s financial conduct had a bearing on the court’s broader findings around support and control, although the issue of debt itself remained tied to whose name was on the obligations.
in these limited cases, relief is not granted through the property regime, but through equitable remedies or support orders based on fairness and economic disadvantage.
best practices for managing debt during separation
obtain a credit report to identify all debts in your name
be cautious about assuming or paying debts not legally yours
include debt obligations clearly in any separation agreement
seek legal advice before agreeing to take on joint debt responsibility
ensure all debts and liabilities are accurately disclosed in financial statements
consider negotiating debt allocation as part of a broader financial settlement
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occupation rent is a financial remedy often raised when one spouse remains in the matrimonial home after separation, while the other does not. the key legal questions are: can the spouse in the home be required to compensate the other? when? how much? and under what authority?
courts in ontario recognize two main sources of jurisdiction for awarding occupation rent:
statutory: under s. 24(1)(c) of the family law act (fla), but only when exclusive possession of the home has been ordered under s. 24(1)(b).
equitable/common law: even without exclusive possession, courts may award occupation rent to do justice between co-owners, typically via s. 122(2) of the courts of justice act.
ii. jurisdictional bases
under fla s. 24(1)(c), if one spouse has court-ordered exclusive possession, the court may require them to pay periodic sums to the other spouse. in contrast, under the common law or equity, no such order is needed, but the parties must usually be co-owners.
in higgins v. higgins, the court tied statutory occupation rent closely to equitable principles.
in lawson v. lawson, despite the lack of co-ownership, occupation rent was allowed because the wife held possession of the husband’s solely owned home post-divorce.
but in koegler v. lalonde, common law spouses were denied occupation rent under the fla due to not qualifying as “spouses.”
courts have recognized occupation rent as an equitable remedy, available in appropriate cases even where statutory jurisdiction under the fla or cja doesn’t strictly apply.
iii. equitable principles
occupation rent is not automatic. courts will only award it when reasonable and equitable, based on several case-specific factors. as stated in khan v. khan, the same considerations apply whether the claim is under the fla or the common law.
courts must balance the rights of co-owners with the economic realities of the family unit, particularly where children are involved or where one spouse is dependent.
in foffano v. foffano, the court warned that occupation rent can be misused as a counterclaim to undermine legitimate support and equalization rights, especially when the remaining spouse is supporting children.
iv. key factors considered
there is no exhaustive list, but common factors courts assess include:
length and timing of occupation (see griffiths v. zambusco);
whether children resided in the home;
whether the occupying spouse paid the mortgage and upkeep;
whether the occupying spouse delayed sale of the home or denied the other spouse access to equity (see craig v. craig);
whether either party paid or failed to pay support;
whether there was ouster (i.e., one party was forced to leave).
in higgins v. higgins, justice quinn listed 9 such factors, from conduct to delay to children’s residence.
v. ouster: is it required?
at common law, a co-owner typically must prove ouster to claim occupation rent. but married spouses under the fla often don’t need to prove ouster due to the protective function of family law.
however, in clark v. vanderhoeven and mathieson v. ostrowski, involving common law partners, ouster remained a key requirement.
where ouster is found—like changing the locks or refusing re-entry—occupation rent is more readily granted. see khan v. khan, where a husband’s unilateral exclusion of his wife helped justify occupation rent.
vi. delay in claiming occupation rent
significant delay in making a claim may result in it being denied or reduced. courts have dismissed late claims in cases like:
eulenhaupt v. eulenhaupt
moorse v. moorse
kazmierczak v. kazmierczak (where a claim was made 13 years after separation)
that said, in sfeir v. sfeir, a three-year delay didn’t defeat the claim due to ongoing efforts to sell the home.
vii. calculation and offsets
the amount awarded typically reflects half the fair market rental value, minus half the taxes, mortgage, or other home-related expenses. courts may:
offset occupation rent against child or spousal support;
deny occupation rent if the non-resident spouse failed to pay support (see malik v. malik, pessotski v. pessotski);
consider whether improvements were made to the property (see ng v. yam, goeldner v. goeldner);
dismiss both claims where occupation rent and upkeep expenses cancel each other out (see murray v. murray, terentiak v. reynolds).
viii. case law examples
a. occupation rent awarded
rogers v. rogers: $1,000/month ordered where mother stayed in home for a year post-separation.
ajayi v. oziegbe: wife ordered to pay occupation rent despite husband’s assault—other factors outweighed the misconduct.
khan v. khan: husband changed locks and delayed sale; court awarded rent from date of separation.
craig v. craig: deliberate delay in sale and obstruction justified occupation rent.
stetco v. stetco: abuse, delay, and profit from rental income factored into award.
b. occupation rent denied
busko v. israel: no exclusive possession, no claim for constructive trust, and voluntary departure defeated claim.
finch v. finch: parties used joint funds for all expenses, and the wife had higher income.
milutinovic v. milutinovic: husband wasn’t ordered to pay as he had shared expenses and wasn’t unjustly enriched.
courts are particularly reluctant to award occupation rent where the claimant left voluntarily, received other financial benefits, or failed to maintain the home or pay support.
ix. practical considerations for lawyers
always plead occupation rent clearly; failure to plead may bar the claim (see stemberger v. stemberger).
advise clients on the timing of their claim.
gather market rental value evidence early.
consider potential offsets from carrying costs or support obligations.
emphasize equity and fairness—especially when children or support recipients are in the home.
x. conclusion
occupation rent is a discretionary and equitable remedy, not a given. courts seek to balance competing claims in a manner consistent with the best interests of the family unit and the fair division of property and costs. in doing so, they draw on both statute and equity, with the guiding principle being fairness.
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how to prevent a spouse from selling or hiding assets during divorce in ontario
one of the most stressful parts of separation is the fear that your spouse might sell, hide, or spend family assets before the court can divide them fairly. fortunately, ontario’s family law act (fla) provides powerful tools—preservation and non-dissipation orders—to protect your financial rights during divorce.
what is a preservation or non-dissipation order?
a preservation order (s.12 of the fla) is a court order that:
prevents one spouse from selling, transferring, or hiding property
ensures property is preserved until trial, so any equalization payment can be fairly calculated and enforced
these orders can be interim or final, and may also require a spouse to deliver up property, keep it insured, or place sale proceeds in trust.
who can apply?
only married spouses may apply under s.12 of the fla as it relates to property division under part i. for support matters, common-law spouses may seek similar relief under s.40 of the fla.
thorne v. buss (1993): a 13-year cohabiting partner was denied relief because she wasn’t a “spouse” under s.12.
legal test: when will a court grant a preservation order?
because this is a form of injunctive relief, courts do not grant it automatically. the applying spouse must show:
risk of dissipation: genuine risk that the other spouse will hide, sell, or waste property.
best interests of justice: balance of convenience and potential harm if assets are lost.
likelihood of equalization entitlement: reasonable chance the applicant will be owed an equalization payment.
lasch v. lasch (1988): the purpose is to preserve assets for equalization, not to punish reckless spending.
bronfman v. bronfman (2000): courts use a modified injunction test, considering the strength of the claim, balance of convenience, and risk of dissipation.
examples of when courts grant asset preservation orders
1. post-separation spending or transfers
if a spouse sells or moves assets suspiciously, a preservation order may follow.
chi v. wang (2010): wife transferred matrimonial home to an aunt. court froze sale proceeds.
2. failure to pay taxes or maintain property
preserving the home’s value may require ordering payment of taxes or insurance.
verch v. verch (2012): husband ordered to transfer home to wife due to failure to maintain it.
3. offshore or cash holdings
spouses with international ties or cash dealings may trigger concern.
kerzner v. kerzner (2013): husband ordered to pay $500,000 into court due to cash dealings.
restrictions on preservation orders
courts prefer specific over blanket orders (e.g., freezing a particular bank account, not all assets).
orders must balance personal autonomy and financial protection.
damer-basso v. basso (2003): courts warned against overly broad non-depletion orders that create conflict over everyday spending.
mclean v. mclean (2014): "dispose of" does not include “encumbering”—language in orders matters!
what about assets owned jointly or held by third parties?
section 12 only applies to property owned by a spouse, not third parties.
for joint or third-party assets, courts may use their equitable jurisdiction or rule 45 of the rules of civil procedure.
ho v. ho (2003): preservation order extended to property held by spouse’s sister, using equity.
zita v. zita (1999): certificate of pending litigation used to protect trust interest in property owned by in-laws.
preservation orders in high-conflict or high-asset cases
in complex financial cases, courts may require spouses to post a bond, file a certificate of pending litigation, or freeze business assets.
adler v. adler (2016): husband ordered to post a $4 million bond and register a cpl due to past asset depletion.
barber v. magee (2016): court reinstated preservation of a home after trial to protect the wife’s equalization rights.
tips for clients: how to protect your financial interests
act quickly: if you suspect assets are being hidden or sold, speak to a lawyer immediately.
gather evidence: bank statements, property deeds, and business documents are crucial.
tailor the order: ask the court for targeted relief (specific accounts, gics, vehicles).
understand the limits: you can’t use preservation orders to control personal spending or gain leverage in non-property matters.
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treatment of pensions during equalization
in ontario, pensions are considered property under the family law act and are included in the calculation of net family property during the equalization process after separation or divorce. since january 1, 2012, parties can request or be ordered to divide a pension directly at source, allowing for either a lump sum transfer or a division of pension payments, depending on the pension's status and applicable legislation.
pensions as property under the family law act
section 4 of the family law act (fla) includes the imputed value of a spouse’s pension as part of their net family property. this value reflects the portion of the pension earned during the marriage, from the date of marriage to the valuation date (typically separation).
legislative framework for pension division
section 10.1, family law act
governs pension valuation and division
applies to all ontario pension benefits act (pba) pensions and other pension types
pension value is calculated under s.67.2 of the pba by the plan administrator
provides for either:
an immediate lump sum transfer (if pension is not in pay), or
a division of monthly payments (if pension is already in pay)
courts use s.10.1(4) factors to decide whether a lump sum transfer is appropriate
pension benefits act and o. reg. 287/11
regulates the procedure for pension valuation and division
maximum transferable amount is 50% of the family law value, plus interest
mandatory use of approved government forms
plan administrators are responsible for producing family law value statements
federal pensions and other exceptions
for federally regulated pensions (e.g., military, public service), the pension benefits division act (pbda) or pension benefits standards act (pbsa) applies. these statutes allow courts to order a lump sum transfer even if the pension is already in pay, unlike the more restrictive ontario pba.
example:
fawcett v. fawcett, 2018 onca 150: upheld lump sum transfer from a military pension already in pay under the pbda, despite fla s.10.1(5)
when courts order a lump sum pension transfer:
courts have discretion to order lump sum transfers when it facilitates fairness or liquidity.
factors considered under s.10.1(4), fla:
availability of other assets
proportion of net family property made up by the pension
liquidity of the lump sum
tax consequences
retirement needs and long-term fairness
cases where lump sum transfers were ordered:
martin v. martin, 2018 onsc 6804: federal pension was main asset; wife awarded lump sum transfer
l.m. v. d.b.m., 2017 onsc 5197: husband had no liquid assets; lump sum granted to wife
spurgeon v. spurgeon, 2016 onsc 14: transfer allowed so wife wouldn’t deplete all liquid assets
nadendla v. nadendla, 2014 onsc 3796: pension made up more than half of husband’s net property
o’kane v. o’kane, 2013 onsc 1617: pension was the only viable way to satisfy equalization
when courts refuse a lump sum transfer:
a lump sum is not always granted. courts avoid pension transfers when:
cash payment is readily available
it would unfairly burden one party
it would worsen cash flow or disrupt post-separation life
examples:
jackson v. mayerle, 2016 onsc 72: lump sum would harm wife’s ability to purchase a home
vanderwal v. vanderwal, 2015 onsc 384: wife could pay equalization from home sale proceeds
tupholme v. tupholme, 2013 onsc 4268: court emphasized payor cannot force deferred payment by pension division
withers v. withers, 2013 onsc 1665: wife owed equalization; had enough liquid assets
dealing with pensions outside equalization:
generally, pensions must be included in net family property. however, courts have occasionally handled pensions outside the standard equalization scheme—usually in exceptional or evidentiary circumstances.
caution: removing a pension from equalization can skew the property division and result in an unfair outcome.
key cases:
ross v. ross, 2006 onca: courts should avoid separating pensions from the equalization calculation
grassie v. grassie, 2013 onsc 1198: pension divided outside equalization due to asset imbalance
ferreira v. ferreira, 2015 onsc 3602: pension ordered divided post-bankruptcy, but approach criticized in legal commentary
procedural requirements
valuation and transfer process (ontario pba pensions)
file form 1 with plan administrator to get family law value
optionally use form 2 to confirm spousal relationship dates
administrator issues valuation using form 4a–4e
if pension will be divided, file form 5 (or form 6 if already in pay)
court orders or agreements must comply with legislative forms and procedures
important notes
common-law spouses may divide pensions by agreement, but only the plan member can initiate valuation
taxes are not included in the administrator’s value; parties must account for them separately
interest is payable on percentage-based transfers but not on fixed dollar transfers unless explicitly stated in the order
interest and taxes on pension transfers
courts may award prejudgment interest on pension-based equalization (nicholson v. nicholson, 2016 onsc 5573)
future income taxes must be considered when equalizing pensions, especially if transfer isn’t at source
heringer v. heringer, 2014 onsc 7291: interest only applies to percentage-based orders, not fixed sums
best practices for dividing pensions in family law
value the pension early using proper forms and plan administrator channels
get actuarial advice to determine tax-adjusted value where necessary
don’t remove pensions from equalization without considering the impact on fairness
seek a lump sum transfer where liquidity is a concern or a clean break is desired
ensure all agreements and orders comply with the pension legislation and regulation
faqs: dividing pensions in ontario family law
can a pension be divided if it is already being paid?
yes—if it’s federally regulated. under ontario law, only monthly payment division is allowed after pension is in pay.is a spouse automatically entitled to a pension share?
no. a court must order the transfer, and it depends on the equalization outcome and discretionary factors.can we handle the pension outside of equalization?
only in rare cases. courts generally require pensions to be included in net family property.can i divide my common-law partner’s pension?
only if the plan is governed by ontario law and you both agree. otherwise, it may not be available.pension division ontario
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in ontario, the division of property between married spouses is finalized through an equalization payment under part i of the family law act (fla). once an equalization order is made, it is final. courts have extremely limited authority to revisit or vary these orders.
this summary explains when variation is permitted, what courts can (and can’t) do, and how to approach payment issues if financial circumstances change.
can an equalization order be changed after it’s made?
in almost all cases, no. the only exception is set out in section 9(3) of the family law act, which allows a court to vary the method of payment (such as by instalments or delay), but not the amount of the equalization payment.
when can the court vary the payment method under s.9(3)?
to qualify for a variation of payment terms, two conditions must be met:
the original judgment must have ordered instalment or delayed payments
there must be a material change in the payor’s financial circumstances
the recipient spouse’s situation is not relevant under this section.
if the original order required a lump-sum payment with no mention of delay or instalments, s.9(3) does not apply.
what courts have said about variation of equalization payments
in taylor v. taylor, 2005 canlii 63820, the court confirmed that equalization is a final determination of past events—not a dynamic obligation like spousal or child support. equalization is not subject to ongoing change.
in reu v. reu, 1995, the wife tried to vary an equalization payment to allow for instalments ten years after judgment. the court refused, finding that s.9(3) did not apply because the original judgment didn’t include a provision for instalments.
in klerides v. klerides, 2007 onca 383, the court made it clear that the family law act does not permit a variation of equalization amounts based on changed circumstances.
even attempts to vary related property rights or enforceability, such as mortgaging a property contrary to a final judgment (see vasil v. vasil, 1989), have been rejected.
no discretion to change the amount of equalization
section 9(3) allows only variation in how a payment is made—not how much is owed. the court cannot revisit or reassess the equalization amount itself.
this has been consistently upheld in:
michel v. michel, [1988] o.j. no. 2058
manthei v. lyons, 1990
cassidy v. cassidy, 2010 onsc 2707 (variation permitted only to “give effect to” the trial judge’s intent—not to change the amount)
jurisdictional limits on property-related relief
outside of s.9(3), there is no authority, statutory or common law, for a court to alter equalization payments once an order is made. that includes:
setting aside the equalization amount due to hardship
seeking variation based on subsequent events or financial decline
using support obligations as a reason to reopen property division
unless the order itself allows for future payment arrangements, the court is bound by the finality of the property division.
best practices for clients dealing with equalization orders
1. negotiate payment terms up front
if you anticipate financial difficulty meeting the equalization amount, negotiate for instalments or delayed payment at the time of trial or settlement. once an order is made, you may be stuck with the original timeline.2. document your financial circumstances clearly
if you’re seeking delayed payments, bring detailed evidence of your income, debts, and inability to pay in a lump sum. the court can vary how you pay, but not how much.3. don’t delay enforcement
if you’re the recipient and haven’t been paid, act quickly. enforcement is easier when the order is recent and there’s no ambiguity.4. consider securing the payment
security (such as a charge on property) can be requested under section 13 of the family law act. this is separate from variation and can protect your right to receive payment.5. know your limits if you’re appealing
you can’t use a variation motion to “re-argue” the division of property. if you disagree with the amount ordered, it must be appealed—not re-litigated later under a variation motion.equalization payment ontario, vary equalization order, division of property family law, family law act ontario s.9, enforcing equalization payments, property settlement in divorce, instalments for equalization, family law judgment enforcement, net family property variation
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navigating parenting time (formerly “access”) can be one of the most emotionally charged aspects of separation or divorce. in ontario, family courts prioritize the best interests of the child in all decisions involving parenting time, whether under the divorce act or the children’s law reform act (clra). this guide summarizes how courts determine access, key legal principles, and common issues that arise.
legal framework for child access in ontario
divorce act: federal standards for parenting time
under section 16(8) of the divorce act, the best interests of the child is the sole consideration for access and custody orders. courts also consider the maximum contact principle (s.16(10)), meaning children should have as much contact with both parents as is beneficial.
case example: in young v. young, [1993] 4 s.c.r. 3, the supreme court emphasized that parental rights must yield to the child’s best interests.
children’s law reform act: ontario’s approach
the clra also uses the best interests of the child as its central standard (s.24). this includes emotional ties, stability, and the child’s views and preferences. courts may reference both acts unless there is a direct inconsistency.
factors courts consider when deciding access
1. frequency and flexibility of parenting time
access schedules range from flexible, where parents cooperate, to structured, where high conflict or logistics demand strict schedules.
vamos v. vamos, 2012 onca 262: the father’s minimal time (every other weekend) was increased to 35% of the time, reinforcing the maximum contact principle.
2. parenting skills
courts assess whether a parent can meet a child’s daily needs. if skills are lacking, courts may order supervised access or require parenting courses.
johnson v. abbott, 2006: father was granted supervised access to a two-year-old until completing a parenting course.
3. place of access
distance matters. courts strive to balance the child’s relationship with both parents against the burden of travel, especially for young children or those with special needs.
rivest-marier v. emond, 2017 onsc 4197: child’s access was structured to accommodate a parent's military relocation.
4. very young children and overnight access
while courts once limited overnight visits for infants, newer decisions often support overnight parenting time where appropriate.
duffus v. walters, 2017: overnight access to a 3-year-old was approved due to consistent positive parenting.
5. leisure and special days
parenting plans often include holidays and weekends. courts aim to ensure both parents have quality time, including vacations and special occasions.
lucas v. nash, 2010 onsc 839: schedule adjusted to allow the mother some weekend time, not just weekdays.
when access may be restricted or denied
psychological harm to the child
courts require strong evidence that access would harm the child emotionally. mere speculation is not enough.
montgomery v. montgomery, [1992] o.j. no. 2299: access was denied after years of harassment that distressed the child.
parental conflict and acrimony
high-conflict situations often result in structured or supervised access to minimize disruption to the child.
tayebi v. oukachbi, 2013 onsc 6960: custody awarded to the father due to the mother's undermining behavior.
promoting a healthy parent-child relationship
encouraging access is a parental duty
under both the divorce act and clra, the custodial parent must support the child’s relationship with the other parent.
ferreira v. ferreira, 2015 onsc 3602: mother was found to be alienating the father; the court restored weekend access.
alienation and enforcement
where one parent blocks access, courts may change custody or enforce access orders.
a.g.l. v. k.b.d., 2009 canlii 943: custody transferred to father after a 10-year pattern of alienation.
delegation and court functions
access decisions must be made by a judge
courts cannot delegate access decisions to third parties like therapists or assessors.
strobridge v. strobridge, 1994: the ontario court of appeal ruled that judges must make final access decisions, not third-party professionals.
final thoughts: best interests of the child always prevail
in ontario, courts recognize the importance of both parents in a child’s life. decisions about parenting time, child access, and parenting schedules are fact-specific, but all are guided by the child’s welfare, emotional needs, and ongoing stability.
parenting time in ontario
child access rights ontario
equal parenting time after separation
access for fathers and mothers
child’s preference in parenting time
supervised access orders
enforcing access and parenting time orders
dealing with parental alienation in ontario
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i. introduction
this summary provides an in-depth analysis of the legal principles surrounding the 'best interests of the child' standard as it pertains to custody and parenting matters in canadian family law. the document is based on a memo prepared by legal aid ontario as of february 28, 2021, and reflects legislative amendments to the divorce act and children’s law reform act (clra) that came into force on march 1, 2021. the summary explores statutory provisions, judicial interpretation, and a detailed review of the various factors that courts consider when determining the best interests of a child, supported by relevant case law from across canadian jurisdictions.
the summary continues with a comprehensive analysis of the following:
1. legislative amendments to the divorce act and clra
2. basic principle of best interests of the child
3. judicial approach to statutory criteria
4. detailed factors considered by courts
5. case law review and applications
ii. legislative amendments to the divorce act and clra
on march 1, 2021, important legislative changes came into effect for the divorce act (r.s.c. 1985, c.3 (2nd supp.)) and the children’s law reform act (r.s.o. 1990, c.c.12). the amendments replaced the traditional terms 'custody' and 'access' with 'decision-making responsibility,' 'parenting time,' and 'contact.' a major purpose of the amendments was to modernize family law language and place greater focus on preventing and addressing family violence. these changes were intended to better reflect the needs of children and improve clarity for litigants and the courts.
the revised legislation also introduced a more structured list of criteria that courts must consider when assessing the best interests of the child, reinforcing the child-centric nature of the inquiry. under the amended divorce act, section 16 outlines the best interests test. similarly, section 24 of the clra provides the guiding framework for custody decisions under provincial law. while the exact wording differs, both statutes emphasize similar values: stability, the nature of the child’s relationships, and the impact of violence, among other factors.
iii. basic principle – best interests of the child
the guiding legal principle in any parenting or custody decision is the 'best interests of the child.' this concept is enshrined in both federal and provincial statutes, and it has been extensively interpreted by the courts. the supreme court of canada emphasized this in the foundational cases of young v. young, [1993] 4 s.c.r. 3, and p. (d.) v. s. (c.), [1993] 4 s.c.r. 141. in these decisions, the court stated that the best interests test is 'all-encompassing,' accounting for physical, emotional, economic, psychological, moral, and intellectual aspects of a child’s well-being.
the ontario case of cox v. stephen, [2002] o.j. no. 2762 (s.c.j.), aff’d (2003), 74 r.f.l.(5th) 1 (ont. c.a.), further clarified that the child’s needs must take precedence over parental rights or preferences. a similar perspective was adopted in gunn v. gunn (1994), 10 r.f.l. (4th) 197 (man. c.a.). the focus is not on which parent 'deserves' custody but rather which arrangement will most benefit the child. in practice, courts evaluate each parent’s ability to meet the child’s specific needs within the broader context of the child’s circumstances.
iv. judicial approach to statutory criteria
courts interpreting the best interests of the child test under the divorce act and the children’s law reform act exercise broad discretion in weighing the various statutory criteria. the leading authority from the supreme court of canada is van de perre v. edwards, 2001 scc 60, where the court emphasized that the trial judge’s discretion must be exercised based on the evidence and guided by the statutory factors, while recognizing that not every factor is relevant in every case.
section 24(2) of the clra outlines a range of factors to consider, including the child’s relationships, views and preferences, stability of the home environment, and the ability of each parent to meet the child’s needs. in kosokowsky v. kosokowsky (1992), 95 d.l.r. (4th) 309 (ont. gen. div.), granger j. emphasized that not all factors will be of equal significance in every case and that the list is non-exhaustive. courts must assess the unique facts of each case and assign appropriate weight accordingly.
the ‘maximum contact principle,’ articulated in s.16(10) of the divorce act, mandates that courts consider the benefits of maintaining significant contact with both parents, provided it is in the child’s best interests. in berry v. berry, 2011 onca 705, the ontario court of appeal reaffirmed that while this principle is important, it is subject to the overarching best interests test. similar considerations were applied in duthie v. junker, 2011 oncj 298, and children’s aid society of algoma v. s.p., 2011 oncj 93.
courts have also cautioned against an overly narrow interpretation of this principle. in jamieson v. jamieson, 2008 onca 675, the court held that a parent’s willingness to facilitate the other parent’s relationship with the child could be decisive. however, in re mcclean and mcclean (1985), 49 r.f.l. (2d) 235 (n.b.c.a.), and d.m.a. v. e.l.h., [1990] o.j. no. 2190, the courts warned that this must not be the sole consideration. similarly, a.h.p. v. c.a.p., (1999) 45 r.f.l. (4th) 56 (b.c.c.a.) emphasized that focusing on a single principle to the exclusion of others constitutes a reviewable error.
appellate courts have generally deferred to trial judges who demonstrate a balanced approach. in stewart v. moran (1994), 1 r.f.l. (4th) 302 (n.b.c.a.), the trial judge emphasized the child’s need for security. in heslop v. burey, 1989 carswellont 765 (ont. c.a.), the appellate court upheld a decision that did not explicitly reference each clra factor, finding that the judge was clearly aware of them. on the other hand, cox v. down, [2002] o.j. no. 2762 (s.c.j.), highlighted the danger of focusing on which parent ‘deserves’ custody rather than the child’s needs.
courts have discouraged reliance on character attacks during litigation. in winter v. carpenter, [1985] w.d.f.l. 1979, the mother’s focus on discrediting the father cost her custody. similarly, in lafreniere v. lafreniere (1985), 37 man.r. (2d) 7 (q.b.), and tyabji v. sandana (1994), 2 r.f.l. (4th) 265 (b.c.s.c.), custody was awarded based on ability to parent rather than conduct alone.
finally, courts have warned against abdicating their responsibility to determine custody. in strobridge v. strobridge (1994), 18 o.r. (3d) 753 (c.a.), and dunnett v. punit, [2006] o.j. no. 4616, the ontario courts held that judges must not delegate decision-making authority to assessors or mediators. moreover, consent orders must reflect the child’s best interests, as affirmed in hayes v. hayes (1987), 6 r.f.l. (3d) 138 (sask. q.b.).
v. factors considered in determining best interests
this section outlines the statutory and judicially interpreted factors that courts weigh in custody and parenting time decisions. the children’s law reform act, section 24(2), and the divorce act, section 16, guide this analysis. courts interpret these factors through a highly contextual and fact-specific lens, relying on a rich body of case law.
due to the memo’s extensive content, including over 100 referenced cases and detailed breakdowns under each factor (such as emotional ties, views of the child, sibling relationships, capacity to parent, parental alienation, abuse, mental illness, and parenting plans), the remaining content will be compiled in the next segment to complete the target word count and comprehensive case law summary.
1. love, affection and emotional ties
courts give substantial weight to the emotional connections between the child and their caregivers, including siblings, extended family, and new partners. in makaryk v. makaryk (1998), 65 o.t.c. 81, the court framed this analysis around the question: 'which parent would the child miss most on a daily basis?' similarly, in wright v. wright, 2005 carswellont 5068, the court awarded primary residence to the father, finding he had stronger support through extended family.
sibling relationships are highly valued. courts generally avoid separating siblings unless exceptional circumstances exist, as stated in ladisa v. ladisa (2005), 11 r.f.l. (6th) 50 (ont. c.a.). in baig v. dean, 2019 onsc 5653, while separation was allowed for practical reasons (the son's sport commitments), sibling contact was maintained. in contrast, in windego v. kenequanash, 2014 oncj 190, the court refused to separate siblings due to their strong bond and the geographic challenges of facilitating sibling relationships across large distances.
extended family plays a central role in assessing stability. in bazinet v. bazinet, 2020 onsc 3187, the court found that maintaining strong relationships with both sets of grandparents was in the child's best interests. conversely, where a parent undermines such ties—as in b.m. v. c.m., [1998] o.j. no. 1432—the court may favour the other parent.
2. views and preferences of the child
the court considers a child's views and preferences if they can be reasonably ascertained (s.24(2)(b) clra). the weight given increases with the child's age and maturity, per kaplanis v. kaplanis, [2005] o.j. no. 275 (c.a.). however, where a child has been influenced or alienated, the court may discount their views. in a.m. v. c.h., 2019 onca 764, the mother's manipulation invalidated the child’s preference to avoid the father.
similarly, in gordon v. goertz, [1996] 2 s.c.r. 27, the supreme court confirmed that a child’s views are only one of several best interests factors and must be considered within the broader context.
3. stability and length of time in a home environment
courts give significant consideration to maintaining the child’s stability and continuity in a known environment. in skye v. silver, 2021 oncj 5, the mother retained sole custody due to an established caregiving arrangement. similarly, in lemon v. lemon, 2018 onca 684, the children's placement with their aunt and uncle was upheld due to the length of care, though access to the mother was expanded due to the children’s wishes.
however, status quo is not determinative. in jackson v. arthur, 2015 onsc 858, custody was shifted to the father despite the mother’s historical caregiving role, as the father demonstrated better judgment and parenting insight.
4. capacity to provide guidance and meet needs
parental ability to provide education, emotional support, stability, and guidance is fundamental. in grenier v. imbeault, 2018 onsc 6467, custody was granted to the mother due to her demonstrated parenting stability, management of the child’s medical needs, and emotional availability. the father's punitive parenting and denial of adhd were detrimental.
courts also consider special needs and intellectual stimulation. in lemieux v. lemieux, 2017 onsc 313, the court noted the mother’s availability and capacity for full-time care, awarding her interim custody due to her consistent involvement and the father’s reliance on third-party care.
5. parental conduct and willingness to support the child’s relationships
the court considers whether a parent encourages the child’s relationship with the other parent. in rego v. santos, 2014 oncj 330, custody was shifted to the father due to the mother’s alienating behaviour. likewise, in a.a. v. s.n.a., 2007 bcca 363, a change in custody was warranted when the mother’s alienation harmed the father-child bond.
this principle also appears in decisions such as busko v. israel, 2018 onsc 5842, where a shared parenting arrangement was restored after one parent unilaterally altered it. the court emphasized that such conduct should not create a litigation advantage.
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in high-conflict custody and access disputes, particularly those involving parental alienation or prolonged estrangement, ontario courts may order therapeutic access or reunification therapy to rebuild a parent-child relationship. these interventions are often framed as part of custody or access orders under the children’s law reform act (clra) or the divorce act.
what is reunification therapy?
reunification therapy—also called reintegration therapy—is a court-ordered process designed to repair a damaged relationship between a parent and a child. this type of access is sometimes necessary when a child refuses contact with a parent due to:
past absence
family conflict
alienation by the other parent
emotional trauma
court jurisdiction to order therapeutic access
ontario courts do not have explicit statutory authority to order counselling under the divorce act or children’s law reform act, but courts have used their discretion under the following provisions:
ss. 24(2), 28(1)(b), 28(1)(c)(vii), and 34 of the clra
s. 16 of the divorce act
parens patriae jurisdiction (inherent power to act in the child’s best interest)
this has been confirmed in cases like leelaratna v. leelaratna (2018 onsc 5983) and testani v. haughton (2016 onsc 5827).
when will courts order reunification therapy?
courts will consider ordering therapeutic access when:
the breakdown in parent-child contact is serious
there is evidence of parental alienation or emotional estrangement
it is in the best interests of the child
a specific therapist or program is proposed
therapy is unlikely to fall under “treatment” requiring consent under the health care consent act (hcca)
for example, in fiorito v. wiggins (2015 oca 729), the court ordered therapy but emphasized the importance of setting a review date. in berhanu v. awanis (2018 oncj 505), therapy was ordered because the mother failed to support the child’s relationship with the father.
limitations: when therapy is not ordered
courts may decline to order therapy if:
the therapy proposed qualifies as “treatment” under the hcca, requiring consent from all parties
there is no clear evidence of alienation or that therapy would help
therapy is strongly opposed by the child or the parent
no specific therapist or plan is proposed
the cost is prohibitive without a clear benefit
see kaplanis v. kaplanis (2005 onca) and barrett v. huver (2018 onsc 2322), where courts found they lacked jurisdiction or that therapy would be ineffective without voluntary participation.
evidence needed to support a therapy order
the requesting party should provide:
a detailed plan outlining who the therapist is, therapy goals, location, and timing
expert evidence showing that the therapy is likely to be beneficial
information about the child’s willingness to engage
proof that therapy does not require consent under the hcca (i.e., it is not “treatment”)
review and enforcement of therapy orders
therapy orders are not permanent. they require:
regular judicial review
compliance monitoring
enforcement through contempt proceedings or cost consequences for non-cooperative parents
in rea v. rea (2019 onsc 551), the father was fined and faced jail time for failing to comply with reunification therapy terms. the court set monetary penalties for ongoing non-compliance.
best interests of the child: the guiding principle
in all cases, the court must determine whether therapy supports the child’s best interests. factors considered include:
the child’s age and maturity
the cause of estrangement
the willingness of the parties
the potential benefit or harm of therapy
in eustace v. eustace (2016 onsc 5004) and dematos v. dematos (2017 onsc 2045), the courts emphasized that therapy must be closely tied to the child's psychological well-being and development.
best practices for parents navigating therapeutic access
document alienation or estrangement: keep records of missed access, text messages, or emails that may show interference.
propose a specific therapist or program: courts are more likely to order therapy when there's a structured, evidence-backed plan.
respect the child’s voice: forcing therapy can backfire. courts weigh the child’s willingness heavily, especially with older children.
act quickly: prolonged estrangement is harmful. courts are less likely to intervene when years have passed without contact.
focus on collaboration: show a willingness to engage cooperatively. resistance to therapy by one parent often results in negative outcomes for them in court.
avoid therapy as punishment: it must be child-focused, not a tool to “punish” the other parent.
understand the law: some therapy may qualify as “treatment” under the health care consent act, in which case consent from the parent or child may be required.
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in ontario, parental incarceration does not, in itself, extinguish a parent's right to seek access to their child. however, courts have repeatedly affirmed that the best interests of the child remain the overriding consideration in both child protection and custody/access proceedings under the child and family services act and the children’s law reform act. incarceration is a significant factor in that analysis, but not a determinative one.
access in child protection proceedings
under section 58(1) of the child and family services act, the court may grant, vary, or terminate an order for access where it serves the child’s best interests. when a child is subject to a supervision order or placed in society wardship, section 59(1) creates a presumption in favour of access to the parent who had care of the child prior to the child’s apprehension. this presumption does not apply if the child becomes a crown ward, where access is only permitted if it will not impair the child’s future adoption prospects or best interests.
in highland shores children’s aid v. m.b., 2014 oncj 34, the court denied a mother in pre-trial custody access to her infant, noting logistical barriers and lack of benefit to the child. other decisions have similarly found that detention-related hardships (e.g., distance, visitation settings, health concerns) may render access contrary to a child’s best interests.
by contrast, in new brunswick (minister of social development) v. m.g., 2012 nbca 19, the court permitted limited telephone access and future supervised visits, citing the child’s strong pre-existing bond with her father and the exceptional nature of their relationship, despite the father's incarceration.
cases such as children’s aid society of the regional municipality of waterloo v. t.l.h., [2006] o.j. no. 569, and children’s aid society of toronto v. m.d., 2004 carswellont 6192, confirm that courts are generally reluctant to preserve access when the parent has no active relationship with the child or is repeatedly incarcerated.
access in custody and parenting time cases
under the children’s law reform act and the divorce act, the test for access remains the best interests of the child. the nature of the parent’s offence, impact on the family, length and conditions of incarceration, and the child’s wishes all factor into the analysis.
courts have regularly refused access where the incarcerated parent was convicted of violence against the child’s other parent. in kienapple v. blackwood, [1996] o.j. no. 2641, the court denied access where the father had assaulted the mother, causing both her and the child to flee. similarly, in hoque v. mahmud, [2007] o.j. no. 3604, the father, convicted of murdering the mother, was denied all access to their children.
in mazar v. mazar, [1987] b.c.j. no. 3038, the court expressed general reluctance about requiring children to visit parents in prison unless absolutely necessary, noting the institutional environment may not serve a child's emotional needs.
however, some decisions support maintaining limited access even during incarceration where there is a meaningful relationship or ongoing contact. in lapointe v. moore, 2009 canlii 6097, the court allowed limited telephone access and permitted correspondence. in grant v. grant, [2006] b.c.j. no. 3401, a mother imprisoned for breaching a custody order was granted biweekly visits with her children in a correctional facility, given their close emotional bond.
anderson v. daley, [2006] s.j. no. 447, is particularly instructive. despite the father being incarcerated for killing the mother, the court granted telephone and in-person access, emphasizing the children's strong attachment and the need to maintain a connection with both biological parents.
factors affecting judicial discretion
access is typically denied where:
the offence was committed against the custodial parent or the child
the child expresses fear or emotional trauma related to the parent
there has been no recent or consistent contact between the parent and child
the parent demonstrates no rehabilitation or plan of care
access may be granted or preserved where:
the child and parent have a close pre-existing bond
there is evidence of positive interaction (e.g., calls, visits, letters)
access can occur in a supervised or indirect form (e.g., photographs, updates, phone calls)
denial of access may cause harm or disconnection
these factors were central in r.s.b. v. m.p., 2007 bcpc 402, where limited institutional visits and daily calls were ordered despite the father facing trial for the mother’s homicide. in t.p.m. v. m.c., 2009 nbqb 226, the court refused to terminate access altogether, noting the child’s welfare had not been shown to be at risk.
best practices in access disputes involving incarcerated parents
provide evidence of the parent’s relationship with the child prior to incarceration
detail any contact maintained during incarceration (calls, visits, correspondence)
document the child’s preferences and psychological needs
demonstrate efforts at rehabilitation, counselling, or parenting programs
propose structured, supervised access if appropriate
consider creative alternatives to in-person visits (e.g., updates, photo exchanges, virtual access)
where access is opposed, submit evidence of harm, trauma, or lack of attachment
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in ontario, grandparents may seek access to their grandchildren, but these applications are complex and highly dependent on the best interests of the child. while courts recognize the potential value of grandparent relationships, parental autonomy is often prioritized unless there is compelling evidence otherwise.
legal basis for grandparent access in ontario
children’s law reform act (clra)
under section 21 of the children’s law reform act, grandparents can apply for access or custody. the phrase “including a grandparent” was added in 2016 to confirm that grandparents have standing, but this change did not give them special status.
application requirements: grandparents must file an application with a prescribed affidavit (s.21(2), clra; r.35.1, family law rules).
divorce act
grandparents can also apply under the divorce act but only with leave of the court (s.16(3)), making this route less common.
core legal principles in grandparent access cases
best interests of the child standard
all decisions are governed by the best interests of the child (s.24, clra). this includes considering:
the child’s emotional needs
the child’s views (if age-appropriate)
the relationship between the child and grandparent
chapman v. chapman (2001): confirmed that parents generally have the right to decide who their children see—unless their decisions clearly harm the child’s best interests.
competing approaches to grandparent access
1. parental autonomy approach (dominant view)
this approach holds that parents are best placed to decide who their children associate with. courts will defer to the parents unless their decisions are:
arbitrary
harmful
contrary to the child’s interests
chapman v. chapman (2001): access denied where children had no positive relationship with the grandparent and parents were acting responsibly.
2. pro-contact approach (less common)
presumes it’s usually beneficial for children to maintain contact with extended family.
campbell v. ramsden (2007): despite parental objections, access was granted because a bond existed and was beneficial to the child.
when courts grant grandparent access
courts may override parental wishes if:
a strong emotional bond exists between the child and grandparent
the parent’s decision imperils that relationship
the parent acted arbitrarily or unreasonably
giansante v. dichiara (2005): set out a three-question test to guide courts:
is there a meaningful grandparent-grandchild relationship?
has that relationship been endangered by the parent?
was the parental decision arbitrary?
barber v. mangal and hurst (2009): access granted where child’s connection to deceased parent’s side of the family needed preservation.
when grandparent access is denied
courts are reluctant to interfere where:
the relationship is weak or nonexistent
there is high conflict between adults
the grandparent undermines parental authority
access would disrupt the child’s stability
whitteker v. legue (2018): access denied where grandparents had not seen the child for two years and previously overstepped boundaries.
diab v. daher (2011): conflict between grandparent and custodial parent was too hostile; child was improving in father’s care.
botelho v. de medeiros (2017): access denied due to lack of relationship and united opposition by all three parents.
alternatives to in-person access
courts may grant indirect access, like sending letters or cards, especially where:
in-person visits would cause conflict
some contact is still seen as beneficial
l.m.o. v. s.s. (2015): in-person access denied, but the court encouraged virtual and mail-based communication.
macdonald v. macdonald (2009): granted limited communication (cards, photos) but denied in-person access due to conflict.
key takeaways for grandparents seeking access
there is no automatic right to grandparent access in ontario.
courts favor parental decisions unless there's clear evidence of harm or unreasonable behavior.
a history of caregiving or deep emotional connection strengthens the case.
applications are case-specific and depend heavily on the current relationship, parental conduct, and the child’s wellbeing.
faqs: grandparents’ rights in ontario
can grandparents apply for access if the parents are married?
yes. the clra allows any person, including grandparents, to apply regardless of parental marital status.
what if the parents are separated or divorced?
you may apply under the clra. applications under the divorce act require leave of the court.
do grandparents have rights if the parent (their child) is deceased?
courts are more open to access in these cases, especially to maintain a connection to the deceased parent’s family.
we help grandparents navigate their legal rights
at our ontario family law firm, we understand the emotional toll when you’re denied access to your grandchildren. whether you’re seeking access or defending against a grandparent’s claim, we offer clear legal advice and compassionate representation.
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i. overview and legal framework
this summary addresses how the conduct of a parent affects access determinations under the children’s law reform act (clra) and the divorce act. the focus is on whether the parent's behavior presents a risk to the child’s best interests. courts consider physical abuse, sexual abuse, emotional abuse, parental alienation, substance abuse, criminal conduct, and the need for supervision or suspension of access. access may be restricted, denied, or conditioned upon rehabilitative efforts. the document references case law spanning ontario and other canadian jurisdictions, reflecting how various forms of conduct have influenced access outcomes.
under s. 24(3)-(5) of the clra and s. 16(9) of the divorce act, courts are mandated to assess whether a parent's behavior impacts their ability to parent. these sections underscore that mere bad conduct is insufficient to deny access—only conduct affecting the child’s welfare is relevant. where a parent’s conduct poses a risk of harm—be it emotional, psychological, or physical—access may be limited, suspended, or supervised.
i. legal framework
courts assess parenting conduct through the lens of the child’s best interests under:
clra s. 24(3)-(5) – requires courts to consider past violence, substance abuse, and harmful conduct affecting parenting.
divorce act s. 16(9) – parental conduct is not considered unless it impacts the child.
the court’s role is protective, not punitive. even poor conduct will not bar access unless it demonstrably endangers or harms the child’s physical, emotional, or psychological well-being.
ii. categories of conduct considered
a. physical abuse
e.o. v. m.p.: custody to mother; father denied access after exhibiting sustained control and abuse. his conduct made access unsafe.
d.c. v. t.c.: despite earlier violence, supervised access allowed following behavioral improvement and rehabilitation.
physical abuse often results in limited or suspended access unless mitigated by change, counseling, or supervised conditions.
b. sexual abuse allegations
c.s. v. s.s.: unproven allegations still led to suspension of access due to possible risk and child's trauma.
r.m. v. s.c.: no charges were laid, but the court was cautious. access was restored only with safeguards in place.
courts prioritize child safety even where allegations are unproven. the absence of criminal charges does not equate to risk-free parenting.
c. emotional abuse and alienation
j.c. v. n.c.: father manipulated child against mother. access revoked due to harmful emotional impact.
l.k. v. m.n.: father’s comments undermined child’s mental health. access was modified.
m.c. v. c.j.: custody switched to protect child from a parent’s coercive, damaging behavior.
alienation is treated seriously—courts will modify access or custody to shield children from manipulative parental tactics.
d. substance abuse
a.h. v. w.r.: alcohol misuse justified supervised access. recovery efforts acknowledged.
f.c. v. g.c.: cocaine use limited access. conditions included random drug testing, treatment, and progress review.
substance issues may not bar contact entirely if rehabilitation and monitoring are present.
e. criminal conduct and instability
p.d. v. k.d.: violent criminal background led to denial of unsupervised access.
m.j. v. r.j.: criminal behavior led to limited and closely managed contact.
b.r. v. h.j.: ongoing instability triggered access suspension.
where criminal behavior poses active risks, courts favor access conditions or full denial.
f. supervised access
t.h. v. b.j.: due to parental mental health decline, access ordered under supervision until stability regained.
a.g. v. d.s.: supervised settings imposed for protection and as a route to reestablish trust and child-parent bond.
supervision is a midpoint—used when access is appropriate but the parent cannot be unsupervised due to past behavior or current instability.
g. reinstatement of access
s.l. v. m.r.: parent undertook therapy, substance treatment, and parenting programs. access gradually restored.
t.w. v. h.f.: reintegration therapy ordered following a prolonged gap in contact and prior suspension.
rehabilitation efforts matter. courts will revisit prior suspensions if the parent demonstrates genuine change.
iii. key legal takeaways
access is not a right of the parent—it belongs to the child.
protection, not punishment, is the goal: only conduct affecting parenting ability matters.
supervised access is a key judicial tool for managing risk.
alienation and emotional abuse are taken as seriously as physical harm.
reinstatement depends on proof of rehabilitation and change.
cas reports, clinical notes, affidavits, and criminal history are all weighed heavily.
courts use graduated access plans to balance safety and parental connection.
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when it comes to child custody, parenting time, and travel with children in ontario, obtaining or renewing a child’s passport can become a significant legal issue. this guide explains how the law governs children’s passports in the context of custody arrangements and what steps parents can take when facing resistance from the other parent.
legal authority over children’s passports in canada
canadian passport order overview
the issuance of children’s passports is governed by the canadian passport order (si/81-86), specifically sections 7 to 9. key points include:
children under 16 require a parent or guardian to apply on their behalf.
if the parents are divorced or separated, only the custodial parent or legal guardian may apply (s.7(1)(b)).
if a non-custodial parent has specific access rights, s.7(2) requires the applicant to prove that a passport application is not contrary to a court order or separation agreement.
if a court order restricts the child's travel, no passport can be issued unless that order is modified (s.7(3)).
when can the passport office refuse to issue a child’s passport?
the passport office has broad discretion under s.8 to request further documentation and may refuse issuance under s.9 if information is incomplete or conflicting.
even if there is no court order requiring consent, the office may request the non-custodial parent's consent if there are specific access rights in place.
court intervention: dispensing with the other parent’s consent
when the non-custodial parent refuses to cooperate, the custodial parent must typically apply to court for an order allowing the passport application or travel without consent.
notable ontario cases:
beech v. rouse, 2017 onsc 4195: court allowed the custodial parent to obtain passports without consent due to communication breakdowns.
amid v. houdi, 2016 onsc 2849: father’s refusal was found unreasonable; court dispensed with his consent.
khuu v. tran, 2016 oncj 536: consent waived due to financial hardship and low flight risk.
nwankpo v. okechukwu, 2016 onsc 966: court granted emergency relief to renew a child’s passport when the other parent was unreachable.
c.r. v. l.a., 2015 oncj 86: high-conflict case; father awarded ability to apply for all government documents, including passports.
these rulings show that courts weigh the best interests of the child heavily when considering such applications.
can sole custody include passport authority?
yes. courts often include language in custody orders giving one parent sole authority over travel documents, especially in cases involving:
domestic violence (e.g., tiveron v. collins, 2014 oncj 574)
international travel needs
parental alienation or access obstruction
risk of false declarations in passport applications
providing false or incomplete information in a passport application can have serious legal consequences. in simmonds v. canada (attorney general), 2013 fc 967, a mother’s failure to disclose a custody order led to the revocation of her passport and denial of services.
travel with children: the legal risks without a passport
without a valid passport, a child cannot legally travel outside canada. courts recognize that refusing to consent without valid reasons may be contrary to the child’s best interests and could result in changes to custody or access orders.
best practices for parents seeking a child’s passport
1. review custody orders or agreements
ensure that your separation agreement or custody order addresses travel rights and passport authority.
2. try to obtain written consent
even if not legally required, having the other parent’s written consent can avoid delays.
3. document all efforts
if the other parent refuses, document all communication attempts. this evidence is useful in court.
4. apply to court early
court processes take time. apply well in advance of travel dates.
5. avoid misstatements
always provide accurate and full disclosure when applying for a child’s passport.
6. consider long-term orders
request an order allowing ongoing travel and passport renewal without requiring repeated consent.
7. prioritize the child’s best interests
courts will assess whether the travel is safe, reasonable, and beneficial for the child.
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supervised access refers to court-ordered visits between a child and a parent in a setting where another adult is present to monitor the interaction. this form of access is typically imposed in high-risk situations to protect the child’s safety and well-being.
supervised access may take place:
in designated supervised access centres
under the watch of a neutral third party (e.g., family member or professional)
with increasing flexibility if the parent shows improvement
when is supervised access ordered?
courts in ontario only impose supervised parenting time in exceptional circumstances. this access arrangement is considered intrusive and artificial, and is typically seen as a temporary measure.
legal framework:
divorce act, s.16(6) and children’s law reform act (clra), s.28 empower courts to place conditions on custody and access.
courts must prioritize the best interests of the child in all decisions.
key case: m.(b.p.) v. m.(b.l.d.e.) (1992 canlii 8642)
supervised access should only be used to resolve access impasses and not as a long-term solution.
common grounds for supervised access
1. rebuilding the parent-child relationship
when a parent has been absent, supervised access allows the child to become reacquainted with them in a safe, supportive setting.
example: in shingarov v. shingarov (2014 onsc 2428), after five years of no contact, the father’s access resumed with supervision.2. domestic violence
if there is a history of abuse—physical, emotional, or psychological—courts often err on the side of caution.
example: in grasso v. bhatt (2019 onsc 746), the father's violent conduct and instability led to supervised access.3. mental health concerns
where a parent’s mental health poses a potential risk to the child, supervision is warranted until the risk is managed.
example: j.b.h. v. t.l.g. (2014 onsc 3569) involved supervised access due to concerns about schizotypal personality disorder.4. substance abuse
ongoing drug or alcohol issues can justify restricted access to ensure a safe environment for the child.
example: in boisvenue v. boisvenue (2019 onsc 1805), the father’s relapse resulted in continued supervised access.5. parental alienation or high conflict
in highly contentious relationships where a child may be exposed to negative parental influence, supervision serves as a neutral buffer.
example: in barrow v. zielonka (2019 oncj 360), false allegations by the mother led to supervised access for her.how courts decide on supervised access
the court applies the best interests of the child test, balancing:
the child's safety (physical, emotional, psychological)
the importance of the child having a relationship with both parents
evidence of harm or risk (not just suspicion)
burden of proof: the parent asking for limited or supervised access must prove why it is necessary (c.g. v. m.g., 2009 oncj 254).
key case: jennings v. garrett (2004 canlii 17126) emphasizes that supervised access should be considered before severing the parent-child relationship entirely.
moving from supervised to unsupervised access
supervised access may be modified as circumstances improve. courts often set milestones such as:
completion of counselling or treatment
positive access reports
time elapsed with no concerns
example: in hackett v. sever (2017 oncj 193), the father’s access was expanded after positive progress and compliance with therapy.
when supervised access may be denied
in rare cases, courts may terminate access altogether if:
the parent poses an extreme and ongoing risk
supervised access has failed to benefit the child
the child refuses to attend despite efforts
however, courts are generally reluctant to completely sever access unless absolutely necessary.
best interests of the child: the guiding principle
every decision hinges on the child’s best interests, which include:
maintaining stable, loving relationships
being protected from harm
developing a sense of security
freedom from exposure to parental conflict
best practices for parents navigating supervised access
if you are the supervising parent:
be neutral: do not interfere or manipulate the visit
comply with court orders
document concerns, but avoid confrontation
if you are the parent with supervised access:
attend all visits punctually
engage positively with your child
complete any court-ordered treatment or assessments
demonstrate a consistent commitment to parenting
general tips:
keep communication child-focused
use supervised access to build trust gradually
seek legal advice before attempting to modify access arrangements
stay patient—progress is often incremental but meaningful
conclusion
supervised access is a serious but valuable legal tool designed to balance the need for a parent-child relationship with child safety and stability. if you’re involved in a family law matter in ontario involving child access, domestic violence, mental health, or substance abuse, it’s critical to understand your rights and responsibilities.
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being in jail does not automatically disqualify a parent from having access to their child. ontario courts base parenting decisions on the best interests of the child, not on a parent’s incarceration alone. however, access from jail is a complex and fact-sensitive issue.
key legal principles for incarcerated parent access
1. best interests of the child
this is the primary and overriding factor. courts consider the child’s age, emotional well-being, the nature of the crime, the child’s views, and whether a meaningful relationship existed or can be rebuilt.
important case: j.a.l.b. v. m.l.z. – access decisions focus on the welfare of the child, not the rights of the parent.
2. type of incarceration
the nature and severity of the offense are critical. if the parent committed a violent crime—especially against the child’s other parent—access is often denied.
example: kienapple v. blackwood – father assaulted the mother and was denied access while in custody.
when access is denied
courts will often deny access where:
the parent was violent toward the child or the other parent;
the child has no relationship with the parent;
the child fears the parent;
the proposed access would take place in an unsettling or unsafe environment;
access would destabilize the child’s current home.
example: hoque v. mahmud – access denied to a father incarcerated for murdering the children’s mother.
example: e.e.t. v. d.c.t. – a long sentence and lack of prior relationship led to denial.when access is granted
access may be granted in limited forms where:
the child has a strong emotional bond with the incarcerated parent;
there is a history of ongoing contact;
the parent’s conduct does not pose a risk to the child;
visits, phone calls, or letters would benefit the child emotionally.
types of access granted:
telephone or written contact
supervised visits (rare)
photo and report updates about the child
example: lapointe v. moore – father granted monthly phone calls and allowed to send letters.
example: rumboldt v. cwalino – mother in prison awarded communication rights, photos, and updates.child protection and crown wardship cases
if the child is under protection by the children’s aid society (cas), access is governed by the child, youth and family services act. once a child becomes a crown ward, access is rarely granted unless it supports future reunification.
example: children’s aid society of toronto v. m.d. – father denied access during incarceration due to lack of contact.
example: minister of social development v. m.g. (new brunswick) – rare case where access was granted to an incarcerated father due to the child’s strong bond with him.reluctant courts and institutional access
many courts express discomfort with ordering children to visit prisons unless absolutely necessary. they are concerned about:
the psychological effect on the child
logistics and safety
the environment being inappropriate for children
quote from mazar v. mazar: “it’s not a particularly pleasant thing to take children to a penitentiary.”
access after release from incarceration
courts may defer access decisions until the parent is released, particularly when:
the child has not had prior contact with the incarcerated parent;
the crime was serious;
there's a concern about ongoing emotional harm.
example: g.l.y. v. p.c. – access was to begin only after the father’s release.
best practices when incarceration affects parenting time
1. present clear evidence
submit evidence showing the nature of the parent-child relationship, the parent's rehabilitation, and how access will benefit (or harm) the child.
2. consider non-visit contact
telephone calls, cards, photos, and school updates can maintain a connection without in-person access.
3. child’s safety and emotional needs come first
focus on what is healthiest and most stable for the child. courts are cautious when a parent has a violent past or when the child is fearful.
4. post-release plans matter
if you are incarcerated and seeking future access, develop a clear plan for re-entry and reconnection with the child.
5. avoid assuming access is a right
access is not automatic—it is a privilege that must align with the child’s best interests.
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in ontario, when parents live in different locations after separation or divorce, disputes often arise about who should pay for transporting children to and from access visits. although there is no specific provision in the law addressing this, courts can and do apportion these costs based on the best interests of the child, the circumstances of the move, and each parent’s financial ability.
legal authority to order transportation cost sharing
divorce act
under s.16(1) and (6), courts may impose “such other terms” on parenting time and access orders as they see fit. this includes ordering one or both parents to pay for travel costs associated with parenting time.
children’s law reform act (clra)
s.28(b) and (c) allow the court to make orders dealing with “incidents of custody or access,” which can include transportation expenses where appropriate.
child support guidelines
s.10(2)(b) recognizes “unusually high access costs” as a factor in undue hardship claims. these costs may be offset by adjustments in child support or cost-sharing arrangements.
legal principles in transportation cost disputes
best interests of the child
courts prioritize the child’s stability, continuity, and meaningful contact with both parents. even when transportation is inconvenient, time spent traveling with a parent is often seen as valuable bonding time (Dookie v. Surujmohan, 2017 ONSC 6073).
who created the distance?
if the non-custodial parent moves, they are typically expected to bear the costs of travel.
if the custodial parent moves, they may be required to share or fully cover transportation expenses.
in some cases, the more financially capable parent pays, regardless of who moved.
key scenarios and court approaches
when the non-custodial parent moves courts generally hold this parent responsible for transportation.
examples:
poirer v. decker, 2014 onsc 3780: father moved post-separation and was ordered to cover access travel.
jones v. roback, 2008 onsc: father’s move from king city to downtown toronto meant he paid all access-related driving costs.
when the custodial parent moves courts often require the custodial parent to cover costs—especially if the move disrupts regular access.
examples:
thompson v. drummond, 2018 onsc 1975: mother who moved 5 hours away was responsible for all access transportation.
suckert v. suckert, 2013 onsc 7806: pregnant mother relocating temporarily had to manage all travel for the father’s visits.
cost sharing between parents where practical and fair, courts order both parents to share costs.
examples:
tait v. tait, 2017 onsc 7314: each parent did part of the driving; the arrangement continued.
glover v. glover, 2001 bcsc: bus tickets for the children were split equally between parents.
financial ability to pay courts may shift costs to the parent with greater resources, even if they didn’t create the distance.
examples:
daller v. daller, 1989 onca: despite initiating the move, the mother was not required to pay due to her lower income.
eberl v. eberl, 2004 onsc: higher-earning father paid for bi-weekly travel; mother paid for longer holiday visits.
travel costs in lieu of child support some courts allow parents to reduce or forgo child support if they assume travel expenses.
examples:
jensen v. jensen, 2006 onsc: father paid for child’s visits from nevada instead of paying support.
davids v. david, 2017 onsc 895: travel expenses offset monthly support obligations.
best practices for parents facing transportation issues
plan ahead: include travel cost-sharing terms in your separation agreement or parenting plan.
keep receipts: document all expenses to support future claims or negotiations.
consider your child's routine: minimize school disruptions and prioritize the child’s comfort.
be flexible and child-focused: shared costs or creative exchange points can reduce conflict and foster cooperation.
talk to a lawyer before relocating: especially in mobility cases, getting legal advice early can prevent disputes.
faqs: parenting time and transportation costs in ontario
can one parent be forced to pay all transportation costs?
yes. if they moved away or earn significantly more, courts may assign them full responsibility.can child support be reduced if i pay for travel?
sometimes. if access costs are unusually high, courts may adjust support under the child support guidelines.what if both parents moved after separation?
courts may divide costs based on financial ability, parenting time arrangements, or fairness.is travel time considered parenting time?
often yes. time in transit with a child may count as valuable parenting time and factor into orders.parenting time ontario
child support transportation costs
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mobility cases child access
separation agreement travel expenses
undue hardship child support
custodial parent moving access costs -
when a family law case concludes, one of the most important issues is who pays the legal costs. in ontario, rule 24 of the family law rules governs this issue. whether you are the applicant or respondent, understanding rule 24 is crucial — it can impact your final bill by thousands of dollars.
here’s a summary of the legal principles, practical rules, and leading cases that define costs in family law matters.
1. what is rule 24?
rule 24 sets out the presumption that the successful party is entitled to their costs, unless they acted unreasonably.
key provisions include:
rule 24(1): the successful party is presumed entitled to costs.
rule 24(4): that presumption can be lost if the party behaved unreasonably.
rule 24(7): costs must be awarded if a party fails to show up or is unprepared, unless it would be unfair.
rule 24(8): if a party acted in bad faith, full recovery costs may be awarded immediately.
rule 24(12): courts must consider proportionality, complexity, behavior, time spent, offers to settle, legal and expert fees, and other proper expenses.
rule 24 applies at every step of a proceeding — motions, conferences, and trials.
2. general legal principles
the ontario court of appeal in mattina v. mattina (2018) emphasized four purposes of modern costs rules:
compensate the successful party (partial indemnity),
encourage settlement,
discourage bad behaviour in litigation,
promote fair and efficient court use.
in beaver v. hill (2018), the court added that costs awards must be reasonable and proportionate — even when one party technically “wins.”
3. custody and parenting disputes
courts used to avoid awarding costs in parenting cases, but no longer. winning matters, even in child-related issues:
in berta v. berta (2015), the successful parent got full indemnity.
in butty v. butty (2009), the court emphasized costs apply in parenting disputes too.
in buchanan v. buchanan (2009), a father was ordered to pay partial costs despite arguing child-focused concerns.
that said, judges may reduce or waive costs if it would hurt the children or be financially crushing.
4. when are costs awarded?
a) to the winning party – rule 24(1)
in sims-howarth v. bilcliffe, success was the starting point.
in cassidy v. mcneil (2010), the wife received $24,590 in costs after winning spousal support.
in weber v. weber (2010), the wife received partial indemnity for her overall success.
but even if you're successful, courts consider the importance of issues and any offers made before trial.
b) if the winning party acted unreasonably – rule 24(4)
you can win the case and still lose costs if you behaved badly:
in wright v. wright, the wife’s extreme settlement demands led the court to award costs against her.
in taylor v. wright-taylor (2013), the mother was successful but lost costs due to her wrongful child retention.
in garrity v. garrity, a father unilaterally cut off access and lost a substantial costs order despite partial success.
c) if you didn’t show up or were unprepared – rule 24(7)
courts penalize parties who waste time:
in steckley v. steckley (2013), a father who failed to appear or participate properly was ordered to pay $9,000.
in brisson v. brisson (2014), a husband who failed to support his claims received a harsh costs ruling.
5. divided success
sometimes both parties win and lose on different issues. in these cases:
courts may apportion costs (e.g., 60/40).
courts assess who was more successful “globally” and how fairly each side behaved.
examples:
knight v. frobel (2018): the father was partly successful on appeal but still had to pay costs.
slongo v. slongo (2017): reduced costs to wife due to mixed success.
whelan v. o’connor (2006): costs awarded despite shared blame for delays.
6. offers to settle and bad faith
offers matter:
if you made a fair offer and the other party rejected it, and you got a better result at trial, you may get full recovery.
in levan v. levan (2006), the wife received full costs after making a better offer than the result achieved.
bad faith:
if a party lies, hides assets, or litigates abusively, courts can award full costs:
in jenner v. jenner (2006), a no-show husband who refused to cooperate was hit with full costs.
7. special scenarios
no pleading for costs? courts can still award them (belanger v. belanger).
children and non-parties? costs can be ordered only in rare situations (st. jean v. st. jean).
hague convention cases? rule 24 applies (husid v. daviau).
8. how much will i get (or pay)?
the amount depends on:
the reasonableness of fees,
time spent,
party’s conduct,
complexity of the case,
offers made,
parties' financial means.
in trick v. trick (2006), the wife won and got $10,000 in costs. in davidson v. ferrill (2006), the father had to pay for wasting the court’s time.
9. appeals and costs
even appeals can attract costs orders:
in selznick v. selznick (2013), the mother lost most appeal issues and was ordered to pay.
in francisco v. francisco (2018), withdrawing an appeal didn’t guarantee success on costs.
10. final thoughts for litigants
be prepared, honest, and efficient.
settle early when possible.
don’t assume parenting disputes are “cost-free.”
always consider whether your behavior might cost you, even if you win the case.
note: if you're involved in a family law dispute, discuss costs risk with your lawyer at every stage. rule 24 means real money is on the line — for you and the other party.
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under ontario family law, marriages where one spouse is still legally married to another person are considered void ab initio, meaning the second marriage is treated as if it never existed. understanding annulment in this context is crucial for protecting your legal status and clarifying rights under family law legislation.
void vs. voidable marriages in ontario
a void marriage is one that is legally invalid from the beginning. examples include bigamous marriages or those involving a close blood relationship. a voidable marriage, on the other hand, is valid until declared otherwise by a court—this may occur due to incapacity, duress, or fraud.
jurisdiction and annulments in ontario
a declaration of annulment is a discretionary judgment that requires jurisdiction under ontario law. annulment applications must usually be made in the superior court of justice or the family court. key factors establishing jurisdiction include:
domicile: typically, if one or both parties were domiciled in ontario at the time of the application, the court has jurisdiction.
residence: residence of both parties in ontario at the time of the application can also confer jurisdiction.
forum conveniens: if multiple jurisdictions apply, the court determines the most appropriate forum to hear the case.
legal basis for annulment: prior subsisting marriage
what qualifies as a prior subsisting marriage?
a marriage is void if either party was already married and that prior marriage was not legally dissolved. this includes cases where:
a party remarries before a divorce takes legal effect.
the prior marriage was not annulled or legally ended.
a foreign divorce was not recognized in canada.
legal incapacity to remarry
as per sealey v. bridge (1966) and english v. english (1928), a person already married lacks the legal capacity to marry again. even a marriage performed in good faith is invalid if a prior marriage was still legally binding.
key case law examples
guptill v. wilfred (2009 nssc 44): second marriage was declared void due to the husband’s still-valid prior marriage.
bolentiru v. radulescu (2004 o.j. no. 3325): the court found the second marriage void as the first marriage had not legally ended.
rahul v. rahul (2003 o.j. no. 1480): annulment granted because the first marriage had not been dissolved before the second ceremony.
bazzi v. deschamps (1995): a religious divorce was not recognized legally, invalidating the second marriage.
proof required for annulment
you must strictly prove a prior marriage existed and was still in effect. evidence may include:
marriage certificates
witness testimony
lack of a legal divorce
cohabitation history
courts have dismissed claims where such proof was inconsistent or insufficient, as in hernaez v. hernaez (1986).
court discretion and declarations of nullity
while annulments are generally granted in cases of a prior marriage, some exceptions occur where the plaintiff’s conduct is questionable. for instance, in batth v. batth (1979), the court refused to grant annulment due to misrepresentations made by the plaintiff during the marriage process.
bigamy and criminal law
bigamy is a criminal offence under section 290 of the criminal code of canada. it carries a penalty of up to five years imprisonment. it applies even if the first marriage occurred in a foreign country, as long as it was valid and not legally ended before the second marriage.
exceptions include:
believing the spouse was dead
no contact with the spouse for over seven years
a legal divorce or court-declared nullity
foreign marriages and ontario law
ontario courts may apply different legal systems based on the location of the marriage and the domiciles of the spouses. two major principles apply:
lex loci celebrationis: the law of the place of the marriage ceremony governs the form of the marriage.
ante-nuptial domicile: the law of each party’s domicile before marriage governs their capacity to marry.
in cases like r.l.d. v. m.e.d. (2002), foreign marriages were found invalid under ontario law due to unresolved previous marriages.
family law claims and void marriages
under ontario’s family law act, a person in a void marriage may still qualify for relief (such as property division) only if they entered the marriage in good faith. courts have rejected claims where the party knowingly entered into an invalid marriage, as seen in reaney v. reaney (1990) and lindmark v. nielsen (1994).
best practices for dealing with annulments and prior marriages
obtain a formal divorce: do not rely on verbal assurances or religious divorces not recognized under canadian law.
verify dissolution dates: wait until your divorce is legally final—usually 31 days after judgment—before marrying again.
retain legal records: always keep certified copies of divorce judgments or annulments.
avoid assumptions: believing a previous marriage was dissolved is not enough—courts require proof.
speak with legal counsel early: especially if your previous marriage involved foreign jurisdictions or religious customs.
do not conceal prior marriages: failure to disclose prior marriages when applying for a marriage licence can invalidate the second marriage and carry criminal consequences.
know the law on good faith: to protect property rights or spousal support under a void marriage, good faith entry into the marriage is essential.
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an adjournment is a request to delay a scheduled court hearing or trial. in ontario family law, adjournments are discretionary—which means the court can grant or deny the request based on fairness and justice in the specific circumstances.
how courts decide: general legal principles
adjournments are not automatic. trial judges are given wide latitude to manage their courtrooms and balance:
the right of each party to a fair hearing
the need for timely access to justice, especially in child custody or protection cases
a refusal to adjourn may be overturned only if the trial judge misapplies the law or acts unfairly (khimji v. dhanani, 2004 canlii 12037).
key factors courts consider
1. orderly administration of justice
delays disrupt the efficient use of court resources. repeated adjournments may prejudice the timely resolution of important family issues like child access, equalization, or spousal support.
example: in children’s aid society of peel v. y.c.l., a six-day loss of judicial time was enough to deny an adjournment.
2. nature of the proceedings
courts assess the seriousness of the matter. more flexibility may be shown in complex custody, parenting time, or child protection cases—but urgency and past delays matter.
example: in burcham v. burcham, the court granted a short adjournment to allow evidence in a custody case, noting the best interests of the children had not yet been addressed.
3. prejudice or unfairness
courts weigh how a refusal or grant of adjournment might unfairly harm either party. for instance, if a party is surprised by a new legal claim at trial or cannot attend due to illness, an adjournment may be necessary for fairness.
example: in walters v. walters, the court found it unjust to proceed when one party had no notice of significant claims, ordering a new trial.
special considerations: parenting time and best interests of the child
courts are cautious about adjournments in custody and access disputes. if the delay harms the child’s stability, courts may refuse even justified requests.
example: in bedford v. mccarthy, an adjournment was denied because it was not in the best interests of the children, even though the father had procedural complaints.
obtaining new counsel
changing lawyers late in the process does not automatically entitle a party to an adjournment. courts expect parties to retain counsel in a timely manner.
example: in martin v. sansome (2014 onca 14), the husband’s last-minute request to delay trial for new counsel was denied after he had months to prepare.
however, where a lawyer is removed due to disbarment or illness shortly before trial, adjournments may be granted in the interest of fairness (new brunswick v. m.(c.)).
preparing your case
a party who seeks more time to gather evidence or review materials may be granted an adjournment—if they’ve shown diligence.
example: in bourke v. bourke, a short adjournment was allowed when a lawyer fell ill and had insufficient time to review new evidence on custody and parenting time.
courts are less sympathetic when there is a pattern of delay, lack of good faith, or failure to act on earlier opportunities (estrada v. estrada, jackson v. arthur).
best practices for clients facing adjournment issues
plan ahead – retain legal counsel early and prepare your materials on time to avoid needing an adjournment.
be transparent with the court – if you need more time, explain why and how it affects your ability to present your case fairly.
don’t assume you’ll get more time – courts may deny adjournments even in emotional or high-stakes family law cases.
document everything – show the steps you’ve taken to prepare or why you're unable to proceed (e.g. medical evidence, efforts to find counsel).
be mindful of the children’s needs – when children are involved, the best interests of the child are the top priority. delays that affect stability or emotional well-being can override your right to more time.
consider alternative options – if an adjournment is denied, you may still be able to request procedural accommodations like a short break to organize materials or limited submissions.
seek interim orders where needed – if an adjournment is granted, courts may issue temporary orders for child support, spousal support, or custody to maintain stability (teodoro v. quintaneiro).
this guide summarizes the legal landscape around adjournments in ontario family law, with attention to custody, support, property issues, and the child’s best interests. it helps individuals understand when a delay is justified and how to approach the issue responsibly in court.
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in family law cases in ontario, courts have the authority to strike a party’s pleadings when they fail to follow court orders or comply with disclosure rules. this is considered an exceptional remedy, used only when less severe actions will not achieve justice or compliance.
when can pleadings be struck?
under rule 1(8)(c) of the family law rules, a court may strike pleadings when a party fails to obey an order, such as:
orders to pay child support or spousal support
orders to provide financial disclosure
costs orders
pleadings may also be struck if a document is seen as abusive, inflammatory, or likely to hinder a fair trial (rule 1(8.2)).
the legal test: how courts decide
courts apply a three-step test from ferguson v. charlton to determine whether to strike pleadings:
is there a triggering non-compliance with a court order?
should the court exercise discretion in favour of the non-complying party?
if not, what remedy is most appropriate?
courts also consider the principle of proportionality, ensuring that disclosure demands are fair, relevant, and not unduly burdensome (kovachis v. kovachis, 2013 onca 663).
striking pleadings is a last resort
striking pleadings is a serious step. courts prefer to hear matters on their merits and will generally give parties one last chance to comply. a pleading will only be struck if:
there’s evidence of willful disobedience
lesser remedies (like costs) have failed
non-compliance is ongoing and deliberate
especially in custody and parenting time disputes, courts are cautious. they avoid striking pleadings if doing so would limit their ability to decide in the best interests of the child (king v. mongrain, 2009 onca 486).
key cases on striking pleadings
purcaru v. purcaru (2010 onca 92): pleadings should only be struck where no other remedy suffices, especially where the judgment involves ongoing support obligations.
kovachis v. kovachis (2013 onca 663): emphasized proportionality in assessing whether full disclosure is necessary.
roberts v. roberts (2015 onca 450): upheld striking pleadings for repeated disclosure breaches. emphasized that financial disclosure should be automatic.
glasco v. bilz (2015 onca 83): non-compliance seen as part of a deliberate strategy; pleadings struck.
in susko v. susko (2016 onsc 7092), a father’s pleadings on financial issues were struck after repeated failures to disclose basic income and asset information, impairing the calculation of child support and property division.
in nool v. carido (2016 oncj 639), the court struck pleadings where the father stopped participating in proceedings and neglected court orders and parenting responsibilities.
best interests of the child and custody cases
striking pleadings in custody and access matters is rare. courts will not strike pleadings if it means they lack the information to make a proper determination. instead, courts may limit a party’s participation or defer decisions until compliance is achieved (haunert-faga v. faga, 2005 onca; d.d. v. h.d., 2015 onca 409).
reinstating pleadings: is there a way back?
pleadings can be reinstated if the defaulting party:
fully complies with outstanding orders
provides an explanation for non-compliance
shows willingness to participate fairly
this ensures fairness while encouraging accountability.
best practices for clients in family law disputes
comply with all court orders promptly. treat them as binding—failure to follow them can seriously jeopardize your case.
make full and frank financial disclosure. whether you're a payor or recipient of spousal support or child support, full disclosure is a legal requirement.
keep records organized. tax returns, pay stubs, bank statements, and asset valuations should be accessible and up to date.
take court warnings seriously. courts often give parties a chance to correct behaviour—don’t miss the opportunity.
prioritize the best interests of your child. avoid any conduct that could be seen as harmful to your child’s well-being or stability.
seek legal advice early. if you’re struggling to comply due to financial or personal challenges, legal advice can help you seek appropriate relief before it's too late.
do not ignore costs orders. unpaid costs can also trigger a strike of pleadings. if you can’t pay, notify the court and seek an extension or variation.
this summary provides general legal information about the court’s power to strike pleadings in ontario family law, especially as it relates to support, custody, property division, and financial disclosure.
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what to do when you can’t serve someone
in ontario family law, parties are legally required to serve court documents properly—usually in person or by a specific method outlined in the family law rules. but what happens when the other party can’t be found, refuses service, or lives abroad? that’s where substitutional service under rule 6(15) comes in.
what is substitutional service?
substitutional service is a court-ordered method of delivering legal documents when traditional service is impossible. under rule 6(15) of the family law rules, you can ask the court to allow service by:
email
text message
facebook or other social media
mail to a known associate or family member
publication in a newspaper
k.h. v. m.l., 2017 oncj 376: substitutional service was allowed via facebook, text, and through the children’s aid society.
legal test under rule 6(15)
to get an order for substitutional service, you must show:
what steps you took to locate the person
if found, what steps you took to serve them
that your proposed method “could reasonably be expected to bring the documents to the person’s attention”
girsberger v. kresz (1998): failure to disclose all relevant facts can result in the order being set aside.
babineau v. babineau (1983): courts now use the stricter test of “reasonable expectation” rather than mere possibility or probability.
how to apply for substitutional service
file a motion without notice
include a detailed affidavit explaining:
attempts to locate and serve
last known contact info
why your proposed method will succeed
tip: courts prefer detailed and specific evidence—not vague claims or assumptions.
real-world examples: when substitutional service was allowed
email or social media
jewish family and child service v. b.(k.) (2016): facebook used because the father had recently contacted the agency through his account.
nowacki v. nowacki (2014): email and registered mail used for a spouse living in poland.
sodhi v. bedi (2016): divorce documents served by email for a spouse in england.
family or friends
judson v. mitchele (2011): documents sent to the respondent’s mother, who agreed to accept service.
marsh v. jashewski (2011): father’s brother alerted him to proceedings—court deemed that effective.
text messaging and cas involvement
k.h. v. m.l. (2017): facebook and text service allowed; children’s aid society ordered to assist with notice.
mail to a third party
mindermann v. mandall (2010): father served via his sister in brampton while he was hiding in ontario after removing a child from florida.
newspaper publication
children’s aid society v. t.m. (2007): mother’s whereabouts unknown—service allowed via publication in local paper.
when substitutional service is denied
courts may refuse substitutional service if:
you didn’t try regular service first
your affidavit lacks detail
your method is not likely to notify the other party
k.f. v. a.m.s. (2018): email service denied because regular service wasn't attempted first, and hague convention rules applied.
reko v. sammy (2014): substitutional service on the family responsibility office denied because fro is a government agency, and rule 6(15.1) prohibits no-notice motions involving such entities.
best practices when seeking substitutional service
try all reasonable methods of traditional service first
keep records of calls, emails, visits, and texts
provide detailed affidavits—avoid generic statements
suggest multiple methods of service (email + facebook, for example)
consider privacy and safety—especially in high-conflict or abuse casessubstitutional service ontario family law
serve court papers by email ontario
rule 6(15) family law rules
how to serve divorce papers when address unknown
court permission to serve documents by text or social media
alternative service methods family court ontario
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what is the hague service convention?
the hague service convention, officially known as the convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters, facilitates the service of court documents between countries that have agreed to its terms. canada is a signatory, and ontario has incorporated the convention into rule 17.05(3) of the rules of civil procedure.
the convention ensures that foreign litigants in family law matters—such as divorce, custody, child access, or support issues—can be properly served, safeguarding the best interests of the child and ensuring fair process.
when does the hague service convention apply in family law?
the convention must be followed when:
the person being served lives in a signatory country.
the matter involves civil or commercial issues, including family law (confirmed in wang v. lin, 2016 onsc 3967).
in ontario, family law rules don’t specifically address international service, so rule 17.05(3) of the rules of civil procedure governs. compliance is mandatory.
two primary methods of service under the convention
1. service through a central authority (article 5)
some countries only allow service through their designated central authority. this ensures legal compliance with their internal procedures. once served, the central authority provides a certificate of service.
2. alternative methods (article 10)
if a signatory country does not object to article 10, documents may be served:
by mail
through private process servers
by judicial officers of the receiving country
but both the foreign country and ontario rules must permit the method used (mitchinson v. zerona international inc., 2014 onsc 4738).
service in the united states
the u.s. allows both methods:
central authority: abc legal (a private agency) handles all service requests.
alternative methods: private process servers are permitted. ensure the method aligns with local state laws and ontario’s procedural rules.
(pitman v. mol, 2014 onsc 2551 confirms service in georgia by a private process server was valid.)
when substituted or dispensed service may apply
if the central authority fails to respond or complete service, article 15 provides a fallback:
courts may allow default judgment if:
documents were sent via the convention.
at least 6 months have passed.
no certificate of service has been received despite efforts.
(tiwari v. tiwari, 2018 onsc 6697 applied article 15 where india’s central authority was unresponsive.)
ontario courts may refuse to permit substituted service until all convention procedures are exhausted (khan resources inc. v. atomredmetzoloto jsc, 2013 onca 189).
limited exception: “access to justice”
in rare, exceptional cases, courts may dispense with convention service to preserve access to justice.
for instance, in zhang v. jiang, 2006 canlii 24131, plaintiffs sought justice against foreign officials for human rights abuses. china's central authority refused service under sovereignty concerns. the court allowed the claim to proceed, citing the interests of justice.
however, most courts decline to bypass the convention unless every avenue has been exhausted.
translation, fees & documentation
forms 17a, 17b, and 17c (ontario forms) must accompany central authority requests.
some countries require translations.
fees vary by destination country; e.g., the u.s. charges $95 usd.
a list of service requirements and fees by country is available on the hague conference website or through legal aid ontario.
case law highlights
wang v. lin (2016 onsc 3967): confirms convention applies to ontario family law.
petrovic v. petrovic (2019 onsc 5838): reinforces that even actual notice is insufficient without convention-compliant service.
xue v. zheng (2018 onsc 1979): allowed substituted service where china’s central authority failed to complete service after 15 months.
bienenstock v. viscardi (2017 onsc 7753): service under article 10(c) and a private process server was valid for default judgment.
best practices for ontario family law clients serving documents internationally
check if the destination country is a hague signatory: use the hague conference website.
determine if service must go through a central authority or if alternative methods (e.g., process server) are allowed.
use ontario forms 17a, 17b, and 17c for all hague service requests.
include certified translations if required by the foreign jurisdiction.
be patient: it may take months to receive a certificate of service.
keep detailed records of all service attempts and communications with central authorities.
avoid premature substituted service applications: courts require you to first try all available methods under the hague convention.
consult with a family lawyer experienced in international service of documents to ensure proper compliance and avoid delays.
family law, child access, parenting time, service abroad, hague service convention, separation agreement, child support, spousal support, ontario family court, international divorce, travel with children, custody and access, division of property
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family law cases in ontario can sometimes be transferred from one court to another to avoid delays, reduce costs, and prevent a multiplicity of proceedings—that is, having the same family involved in multiple overlapping cases in different courts. the legal basis for transfers is found in:
s.2(2) of the family law act (fla)
s.66 of the children’s law reform act (clra)
s.107 of the courts of justice act (cja)
the court has discretion to transfer a case when it believes another court is better suited to decide the matters at issue—usually because it has broader jurisdiction or other related proceedings are already ongoing there.
key legal rules on transfer of proceedings
1. section 2(2) of the family law act
this section prevents parties from filing the same matter in more than one court. however, the court can order a transfer if the new court has other jurisdiction that makes it more appropriate to hear the case.
note: the request must be made in the original court where the case started.
2. section 66 of the children’s law reform act
this section mirrors the fla and is aimed at centralizing custody and access issues in a single court to avoid duplication.
3. section 107 of the courts of justice act
allows for transfer or coordination of cases that involve shared legal or factual issues across different courts.
4. section 110 of the courts of justice act
applies when a case was simply filed in the wrong court. this section allows the case to be transferred without starting over.
when courts will and won't allow transfers
transfers to avoid duplicating proceedings
transfers are only appropriate where:
two or more cases involving the same parties or issues are active in different courts, or
one court lacks the jurisdiction to resolve all the issues.
example: if support and custody are filed in the ontario court of justice, but a property claim must be heard in the superior court of justice, the entire case may be transferred to the superior court.
transfers are not for “court shopping”
courts will not grant a transfer just because a party prefers a different court or believes that court has better procedures or more formal processes.
relevant case: in rein v. muur, the court refused a transfer requested solely for procedural advantages, such as access to summary judgment or discovery.
when transfers are not allowed
if there are no parallel proceedings in another court, a transfer under s.2(2) of the fla is not permitted.
a transfer cannot vary previous court orders, especially orders made under the divorce act or by a higher court.
transfers are not meant to elevate a case to a higher court unless required to address all the issues fairly.
duffield v. duffield held that a court had no jurisdiction to transfer a proceeding where no other case was ongoing.
examples from case law
allowed transfers:
nichols v. wallans: child support and arrears were transferred to supreme court to be heard together.
wright v. wright: custody was heard in provincial court while support was stayed pending a superior court property division case.
denied transfers:
dobert v. mcculloch: the ontario court of justice refused to accept jurisdiction to vary superior court orders.
turner v. martin: transfer request denied because property claim could be filed separately in superior court without violating the fla.
best practices for managing court transfers in family law
1. understand the jurisdiction of each court
the ontario court of justice typically handles custody, access, and support—but not property or divorce matters. the superior court of justice (family court) has broader jurisdiction and can hear all family law issues.
2. centralize your legal matters where possible
if you have or expect multiple claims (support, custody, property, spousal support), consider initiating proceedings in the court that can handle all of them to avoid later transfers.
3. don’t rely on preference
you cannot request a transfer just because another court seems more formal or strategic. courts expect a legitimate reason, such as jurisdictional necessity or active related proceedings.
4. watch for jurisdictional mistakes
if your case is filed in the wrong court (e.g., support in superior court when it should be in the ontario court), the court may transfer the case under s.110 of the cja without you needing to start over.
5. request transfers early
transfers are easier to manage when raised at the beginning of a case—especially before substantive steps are taken in both courts.
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what happens if a prior marriage was never ended?
in ontario, a person cannot legally remarry while a prior marriage is still legally valid. if someone enters a second marriage before their first marriage is lawfully dissolved—either by divorce or annulment—the second marriage is considered void ab initio (void from the outset).
what is a void marriage?
a void marriage is a marriage that never legally existed. unlike a divorce, where a legal marriage ends, a declaration of nullity confirms that the marriage was never valid due to a legal defect—like an existing marriage.
sealey v. bridge (1966): a second marriage is void if the first marriage is still legally in effect.
legal basis for annulment in ontario
annulment of marriages act (ontario)
ontario still follows principles from english law as it stood in 1870, per the annulment of marriages act, meaning courts apply older english ecclesiastical principles in annulment cases.
batth v. batth (1979): an annulment is a declaratory judgment—meaning it confirms status, rather than creates it.
grounds for annulment: prior subsisting marriage
1. no legal capacity to marry
a person does not have legal capacity to remarry if their earlier marriage has not been ended by a divorce or nullity judgment.
bolentiru v. radulescu (2004): marriage was void because the husband’s previous divorce only became final after he remarried.
guptill v. wilfred (2009): husband knowingly remarried while still married; court declared second marriage void and denied property rights.
peters v. murray (2006): annulment granted when it was proven that the wife was already married at the time of her second marriage.
the legal test: strict proof is required
you must strictly prove the existence of a prior subsisting marriage. courts will not grant annulment lightly, especially on admissions alone.
segraves v. fralick (1951): a trial is needed—judgments can’t be based on unproven admissions.
kelly v. kelly (1976): plaintiff showed first marriage existed and spouse was alive—onus shifted to defendant to prove divorce.
exceptions: when a subsequent marriage is valid
if the first marriage was itself invalid, a second marriage may still be legally valid.
hill v. mcdowell (1986): first marriage was void because the spouse had a prior marriage, so the second marriage was valid.
r.l.d. v. m.e.d. (2002): a valid marriage occurred after a prior bigamous marriage was deemed void.
what about mistaken belief or good faith?
courts will still declare a marriage void if it was entered into during a prior subsisting marriage—even if done by mistake or in good faith.
rahul v. rahul (2003): annulment granted even though parties were unaware at the time that the prior marriage hadn’t ended.
felton v. felton (1999): man assumed his divorce was final and remarried—annulment granted anyway.
discretion of the court: can an annulment be denied?
although annulment is technically discretionary, courts will not deny a declaration of nullity where there is a clear legal bar to marriage.
sperling v. silva (1983): delay or knowledge of the prior marriage is not a bar when the marriage is void.
meunier v. meunier (1997): annulment granted even after 20 years of delay.
exception: in rare cases, courts may deny annulment due to fraud or bad faith by the applicant.
batth v. batth (1979): court refused annulment where plaintiff lied about her status to avoid her partner’s deportation.
criminal consequences: bigamy in canada
bigamy is a crime under the criminal code (s.290)
a person who enters a second marriage while still married may face up to five years in prison. this includes:
marrying again in canada or abroad while still married
marrying someone known to be married
exceptions: no criminal liability if:
the spouse was absent for 7+ years and presumed dead
there was a reasonable belief the first marriage had ended
r. v. moustafa (1991): accused convicted of bigamy for marrying again 5 months after first marriage.
bazzi v. deschamps (1995): religious divorces not recognized by ontario courts—remarriage was invalid and bigamous.
legal consequences of a void marriage
no equalization of property under the family law act unless marriage was entered into in good faith
may impact spousal support, especially if the relationship was known to be invalid
children are still considered legitimate, and child support obligations apply
reaney v. reaney (1990): no equalization when marriage was void and not entered into in good faith.
lindmark v. nielsen (1994): mexican proxy marriage not recognized; spouse had no property rights.
annulment ontario law
void marriage due to prior marriage
bigamy law canada
how to annul a marriage in ontario
second marriage while still married
declaration of nullity family law
spouse lied about divorce ontario
religious divorce not recognized in canada
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in ontario family law, courts may require parties or children to undergo mental health assessments in high-conflict custody, access, and support disputes. these assessments play a key role in determining what is in the best interests of the child and in ensuring fairness when mental health or psychological capacity is raised as a concern.
legal authority for mental health assessments
courts of justice act – section 105
section 105 of the courts of justice act gives the court authority to order a mental or physical health assessment when a party’s condition is relevant to a material issue. the court must be satisfied that the condition is legitimately in question and that an assessment is necessary.
key aspects:
a party can be compelled to attend a medical or psychological examination.
assessments must be performed by licensed health practitioners.
answers given during assessments are admissible in court.
a request initiated by one party must show the allegation is materially relevant and has substance.
children’s law reform act – section 30
section 30 of the children’s law reform act (clra) allows the court to appoint a qualified person to assess the needs of the child and the ability of each parent to meet those needs.
key aspects:
assessments may be ordered even without a party’s request.
parties are expected to cooperate with the assessment process.
reports are filed with the court and shared with all parties.
assessments must be in the best interests of the child.
when are mental health assessments ordered?
parenting time, child access, and custody disputes
in mcgill v. anderson (2011 onsc 2042), the court suspended a father’s access and ordered psychiatric and substance abuse assessments due to alarming conduct. serious incidents involving the children’s safety and inappropriate remarks by the father justified the order.
in varshavsica v. varshavsica (2010 onsc 3616), a mother’s failure to complete a required mental health assessment led to supervised access only and barred further custody motions until compliance.
the court has emphasized that assessments are not routine but are appropriate where mental health concerns may impact parenting capacity.
equalization and support claims
mental health assessments are rarely ordered in support claims unless directly relevant. in jeffery v. jeffery (2007 oj no. 4412), the court denied an order for assessment, noting that the wife's medical condition was not a material issue in the motion to vary support.
similarly, in ruel v. juodis (2004 oj no. 3444), the court found insufficient justification for a mental health assessment, even though the respondent disputed the applicant’s disability status in a child support claim. unless mental or physical condition significantly affects financial issues, such orders are unlikely.
how courts evaluate requests for assessments
in glick v. cale (2013 onsc 893), the court listed factors to determine whether an assessment under section 30 of the clra is justified. these include:
the history of parental conflict and cooperation,
clinical diagnoses impacting parenting,
concerns about a child’s behavior or vulnerability,
the feasibility and cost of assessment,
whether it is the least intrusive and most helpful way to resolve the issue.
these criteria were later adopted in cases like ryan v. scott (2013 onsc 4759) and fuda v. fuda (2011 onsc 154), supporting assessments where mental health, domestic violence, and parental alienation are at issue.
courts also consider the potential delay caused by assessments and whether such delay may ultimately serve the child’s best interests by helping resolve conflict.
child assessments and best interests of the child
mental health assessments of children are approached with caution. courts avoid subjecting children to invasive procedures unless there is a clear need.
in leonardo v. meloche (2002 oj no. 4922), a motion to assess an eight-year-old was denied due to lack of behavioral issues. the court held that assessments should not be ordered unless they are truly necessary.
in crozier v. crozier (2006 oncj 177), the court restored joint custody after a mother with bipolar disorder had recovered. an outdated assessment was disregarded in favour of current evidence, reaffirming the principle that the best interests of the child must reflect the present situation.
refusal or failure to comply with an assessment order
non-compliance with a mental health assessment order can lead to serious consequences. in varshavsica, the mother’s failure to obtain an assessment prevented any custody change.
under both section 105 of the courts of justice act and section 30 of the clra, courts may infer adverse conclusions about a party’s parenting ability if they refuse to cooperate.
best practices for clients in family law proceedings involving mental health
be proactive and transparent
if mental health is an issue, voluntarily undergoing an assessment can demonstrate goodwill and readiness to co-parent responsibly.cooperate with court-ordered assessments
comply fully and promptly. refusal may limit your access to children or weaken your legal position.focus on the best interests of the child
whether seeking parenting time, custody, or access, always frame concerns and requests around the child's needs.use evidence, not assumptions
courts require credible evidence before ordering assessments. avoid baseless accusations and rely on professional reports when available.respect the process and avoid delays
repeated non-compliance or filing inadequate motions may result in cost orders or restrictions on future applications.engage with assessors respectfully
your conduct during assessments may influence recommendations. be honest, cooperative, and focused on the child’s well-being.consider alternatives before requesting an assessment
if concerns are not clinical, involving the office of the children's lawyer or parenting coordination may be a better solution.
conclusion
mental health assessments in family law are powerful tools to help the court understand complex parenting dynamics. however, they are ordered only when necessary and justified. courts will always prioritize the best interests of the child and ensure that assessments are not used improperly or to gain tactical advantage. understanding the legal thresholds and approaching the issue with sensitivity can greatly assist parties navigating high-conflict family disputes in ontario.
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in ontario family law, offers to settle play a major role in determining who pays legal costs. courts use these offers not only to encourage settlement, but also to decide how much one party should pay in legal fees if the case goes to trial or motion.
why offers to settle matter
offers to settle can influence the final costs award. under rule 18 of the family law rules, if one party makes a reasonable offer that the other side rejects—and the final result is equal to or better than that offer—the offering party is often entitled to full recovery of legal costs from the date of the offer onward.
plummer-grolway v. grolway: courts expect parties to make and consider offers seriously. reasonable offers can be the deciding factor in large cost awards.
the law on offers to settle: key legislation
courts of justice act (cja), s.131(1)
gives courts broad discretion to award costs.
family law rules – rule 18
this governs offers to settle and how they affect cost awards. key provisions include:
rule 18(14): sets out the default rule that full recovery costs are awarded if:
the offer was made at least 7 days before trial (or 1 day before a motion).
it wasn’t withdrawn or expired.
the offering party obtains a result as good as or better than the offer.
rule 18(16): even if rule 18(14) doesn’t apply, courts can still consider the existence and content of an offer when deciding costs.
when offers affect costs: legal principles and examples
you make an offer and win big
if you made a fair offer and got a better or equal result at trial, you can get full recovery of legal fees.
levan v. levan: wife awarded full recovery after the court ruled her offer was better than what the husband ultimately got at trial.
gale v. gale: court awarded full recovery for spousal support where the wife’s offer matched the final order.
you reject a reasonable offer and lose
refusing a good offer can lead to a significant costs penalty, even if you win on some issues.
butty v. butty: husband made unfounded allegations and ignored disclosure obligations. the wife’s reasonable offer led to a large costs award.
both parties make reasonable offers
where both parties submit reasonable offers or success is divided, courts may:
award partial costs
split costs
make no costs order
weare v. naumann: despite mixed success, costs were reduced due to both parties acting reasonably.
heon v. heon: no costs awarded where both sides submitted fair offers and litigation was reasonably conducted.
unreasonable offers or bad faith
courts frown upon unreasonable or manipulative offers and may award higher costs against the offending party.
ficca v. ficca: self-represented father made an extreme offer to minimize mother’s role—court called it “exacerbating” and awarded her costs.
sabo v. sabo: husband’s unreasonable positions and unrealistic offers led to him paying significant costs.
what if there’s no offer at all?
failure to make an offer won’t automatically lead to a penalty—but it can hurt your costs argument, especially if the other party made a reasonable offer.
beaver v. hill: a party’s failure to offer a meaningful compromise was relevant, but not determinative, in a constitutional claim.
do offers in settlement conference briefs count?
no. for costs purposes, an offer must meet formal requirements under rule 18. offers buried in conference briefs or unsigned documents generally do not count.
sader v. kekki: courts cannot consider offers included only in settlement conference briefs.
owen-lytle v. lytle: subsequent offers may implicitly withdraw earlier offers, even if the earlier one was more generous.
offers must be clear and compliant
an offer must:
be in writing
be signed
state it is an offer to settle
include clear terms and a deadline
hart v. tobin: informal language and missing terms in a case conference brief meant the offer didn’t qualify under rule 18.
how courts compare offers and outcomes
courts will:
look at the relief requested vs. relief obtained
consider timing and tone of the offer
assess reasonableness and compromise
berta v. berta: misunderstanding of the spouse's offer led to a mistaken full-costs award—sent back for rehearing.
polak v. polak: father’s offer was closer to final order than mother’s. he got partial and full costs at different stages.
best practices for clients
make at least one reasonable written offer early in the process.
keep all communications formal and clear.
review offers carefully—a fair deal today may save major costs tomorrow.
if you reject a reasonable offer, be prepared to explain why.offers to settle family law ontario
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in ontario family law, financial disclosure isn’t optional—it’s mandatory. whether you’re negotiating a separation agreement, applying for child support, spousal support, or equalization of property, the law requires each party to provide full and accurate financial information.
failure to meet this duty can lead to serious consequences, including imputed income, struck pleadings, costs, or even contempt. this page outlines the legal obligations, common pitfalls, and best practices for financial disclosure under the family law act, the child support guidelines, and the family law rules.
who must disclose financial information—and when
under the family law act:
section 8 requires both spouses to file sworn financial statements in property and equalization matters
section 41 requires full disclosure when seeking or varying spousal or child support
under the child support guidelines:
section 21 requires the exchange of income information in any child support proceeding
section 25(1) allows a recipient parent to request updated income information annually
rule 13 of the family law rules further details the forms and deadlines, requiring:
form 13 for support claims
form 13.1 for support plus property claims
supporting documents such as notices of assessment, bank statements, and pension valuations must be attached.
full, frank and ongoing disclosure is required
parties must make complete, accurate, and timely disclosure of all relevant financial information, including:
income from all sources (even non-taxable or irregular)
property and debts as of the date of marriage, separation, and filing
excluded property (such as gifts or inheritances)
all significant financial transactions in the two years before separation
rule 13.15 imposes a continuing obligation to update financial statements if circumstances change or errors are found.
consequences of failing to disclose
courts take non-disclosure seriously. the following consequences are commonly applied:
1. income may be imputed
courts often assign (“impute”) income to a non-disclosing party based on lifestyle, spending habits, or known employment.teitler v. dale, 2017 onsc 248 – income imputed where lifestyle exceeded declared income
alves v. alves, 2016 oncj 679 – court inferred undisclosed income due to unexplained expenses
crosbie v. crosbie, 2012 onca 516 – support set based on mother’s income reconstruction
2. pleadings can be struck
if disclosure orders are ignored, courts may strike pleadings, making it impossible for the non-compliant party to participate in the case.sleiman v. sleiman, 2002 canlii 44930 – father barred from contesting support due to repeated disclosure breaches
3. adverse inferences may be drawn
courts may assume that the missing information would have harmed the non-disclosing party’s case.homsi v. zaya, 2009 onca 322 – adverse inference for failing to disclose matrimonial home value
robillard v. robillard, 2003 – court accepted wife’s valuation where husband failed to respond
4. costs may be awarded
where non-disclosure causes delay or unnecessary litigation, the offending party may be ordered to pay legal costs.chatur v. de los reyes, 2012 oncj 367 – court imposed costs for late disclosure
khan v. parlee, 2012 oncj 60 – costs and imputed income for poor disclosure by self-employed father
5. variation or increase in support denied
if a party fails to update their disclosure, they may be barred from reducing support or may face an increase instead.zanewycz v. manryk, 2009 onsc – variation motion dismissed due to undisclosed severance and rrsp contributions
financial disclosure applies in agreements too
under section 56(4) of the family law act, a domestic contract (e.g. separation agreement) may be set aside if:
one party failed to disclose significant assets or debts
the other party relied on that incomplete disclosure
in virc v. blair, 2016 onsc 49, the husband’s failure to disclose the true market value of corporate investments led to the agreement being set aside.
special obligations for self-employed parties
self-employed individuals must provide:
complete business financial statements (for the past 3 years)
personal tax returns
accurate income figures (not just line 150 from tax returns)
courts often impute income where this information is missing or manipulated.
mcleod v. mcleod, 1998 – self-employed party must provide more than tax returns
khan v. parlee, 2012 – income imputed due to inconsistent and misleading records
obligation extends to property values and non-parties
if a party owns a business or is in a partnership, corporate financials and valuations must be disclosed
new partners’ income may be relevant in spousal support cases, especially in undue hardship claims
slater v. slater, 2010 onsc 5737 – disclosure required of new partner’s income for household contributions
proportionality matters in disclosure requests
courts aim to balance thorough disclosure with efficiency. excessive or irrelevant demands can be denied.
kochar v. kochar, 2015 onsc 6650 – disclosure must be proportionate to the issues and stakes
zanewycz v. manryk, 2009 – blanket requests for all receipts rejected as disproportionate
best practices for financial disclosure in family law cases
1. be proactive
don’t wait for a court order. exchange financial information early and completely.2. include all sources of income
this includes cash income, non-taxable income, benefits (e.g. free housing, cars), and gifts from family.3. update as needed
if your financial circumstances change, update your disclosure immediately. don’t rely on outdated forms.4. support your numbers
attach bank statements, tax documents, valuations, and receipts where possible.5. get professional valuations
if there’s a serious dispute over asset value (e.g. business, pension), get an independent expert opinion.6. keep it honest and complete
guesswork, omissions, and vague disclosures can all be used against you in court.financial disclosure family law ontario, family law financial statement rules, child support income disclosure, self-employed income family court, spousal support financial evidence, domestic contracts disclosure duty, financial disclosure divorce ontario, rule 13 family law, imputed income ontario family law
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spousal support is a crucial aspect of family law in ontario. it addresses the financial consequences of marriage breakdown and aims to promote fairness, economic security, and independence. whether you’re seeking support or being asked to pay it, understanding the entitlement and need for spousal support is essential.
legal basis for spousal support
divorce act (federal)
section 15.2 of the divorce act sets out the objectives:
recognize economic advantages/disadvantages of the marriage or its breakdown
apportion child-related financial burdens
relieve economic hardship
promote economic self-sufficiency
family law act (ontario)
section 30 of the family law act (fla) creates a mutual obligation to provide support based on need and ability to pay. section 33(9) lists numerous factors courts must consider, including income, health, caregiving roles, and standard of living.
three types of spousal support entitlement
the supreme court of canada has established three bases for spousal support entitlement:
1. compensatory support
recognizes economic disadvantage suffered by a spouse due to marriage-related decisions (e.g., staying home with children, relocating for a spouse’s career).
moge v. moge, [1992] 3 s.c.r. 813: confirmed that sacrifices made in marriage should be compensated.
cassidy v. mcneil, 2010 onca 218: support awarded where wife subordinated her career during a long marriage.
2. non-compensatory support (needs-based)
applies where a spouse cannot maintain a post-separation standard of living, even without direct disadvantage from the marriage.
bracklow v. bracklow, [1999] 1 s.c.r. 420: support awarded for illness-related inability to be self-sufficient, even without compensable loss.
fisher v. fisher, 2008 onca 11: retroactive support awarded for economic hardship post-separation due to disability.
3. contractual support
based on a domestic contract, marriage agreement, or prior settlement between spouses. enforceable unless unconscionable or contrary to law.
key factors in determining support
length of relationship
roles assumed during marriage
economic hardship post-breakdown
age and health
income disparity
contributions to spouse’s education or career
childcare responsibilities
ability to achieve self-sufficiency
the role of the spousal support advisory guidelines (ssag)
the ssag offer a formula-based approach to calculating the amount and duration of spousal support, depending on whether children are involved.
with children:
aims for 40–46% of net family income to go to the lower-income spouse.
considers parenting roles and child support amounts.
without children:
support ranges from 1.5–2% of income difference per year of cohabitation.
indefinite support if relationship lasted 20+ years or satisfies the “rule of 65.”
note: ssag are advisory, not mandatory, but are widely used and respected by ontario courts.
fisher v. fisher: ssag endorsed as a helpful tool but not binding.
slongo v. slongo, 2017 onca 272: court raised support to fall within ssag due to strong compensatory claim.
when support may not be awarded
equalization of property may eliminate financial need.
short marriages without significant sacrifice often result in limited or no support.
hart v. krayem, 2016 onsc 5754: equalization was sufficient; no support awarded.
fotheringham v. fotheringham, 2004 canlii 5049: equal incomes and assets made support unnecessary.
high vs. low-income spouses
high-income payors:
ssag apply up to $350,000/year.
courts may exceed this threshold with justification.
h.s.s. v. s.h.d., 2018 bcca 199: $40,000/month awarded even with $4.5m in property.
low-income payors:
no support typically ordered below $20,000/year income.
exceptions may apply in long-term marriages or extreme hardship.
wells v. campbell, 2015 bcsc 3: lump sum ordered due to very low incomes on both sides.
interaction with property division
spousal support is determined after property equalization is resolved.
greenglass v. greenglass, 2010 onca 675: support must be assessed only after financial standing is clear post-equalization.
spousal misconduct and support
while conduct is usually irrelevant, unconscionable behavior may be considered in determining amount, but not entitlement.
robinson v. robinson, 1993 canlii 8491: need is the core of the support obligation.
summary: spousal support claims depend on the “why”
the strength and duration of a spousal support order hinges on the basis of entitlement:
compensatory → stronger claims, longer support
non-compensatory → more flexible, often time-limited
contractual → based on written agreement
understanding the “why” behind your claim helps courts decide how much and for how long.
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entitlement to spousal support
compensatory vs. non-compensatory support
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spousal support after equalization
how much spousal support do i get?
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the importance of ability to pay in spousal support
under ontario and federal family law, determining spousal support involves analyzing the means and needs of both parties. one of the most contested aspects is the payor’s ability to pay, especially when the payor's income has been voluntarily reduced. courts must ensure that support orders are fair, sustainable, and reflective of genuine financial capacity.
key case: bemrose v. fetter, 2007 onca 637
the court found that ignoring the payor’s inability to pay—due to significant debt and no equity—was a legal error. this case underscores that judges must consider the payor's actual financial means, not just the recipient's needs.
how courts assess ability to pay
use of spousal support advisory guidelines (ssag)
although not legally binding, the ssag provide ranges for quantum and duration based on income differences. they serve as a reference point but must be balanced with each case’s facts.
key case: moge v. moge, [1992] 3 s.c.r. 813
the supreme court noted that the central issue is often the payor’s ability to pay—not the recipient’s entitlement.
voluntary income reduction and support obligations
courts look skeptically at voluntary unemployment, income restructuring, or lifestyle manipulation aimed at reducing support obligations.
key case: drygala v. pauli, 2002 canlii 41868
a leading authority on income imputation, the case clarified that bad faith is not required—any voluntary action reducing income may result in imputing income for support purposes.
acceptable vs. unacceptable reasons for reduced income
acceptable:
involuntary unemployment
health issues
genuine business decline
retirement based on health or employer changes
unacceptable:
quitting a job to avoid payments
increasing liabilities on purpose
hiding assets or misrepresenting income
extravagant personal spending over obligations
key case: ross v. ross, 2014 onsc 1828
support was postponed until the payor began receiving disability benefits or returned to work, reflecting the principle of assessing actual financial capacity.
imputation of income and earning potential
when the payor is underemployed or unemployed without justification, courts can impute income based on past earnings, education, and employability.
key case: serra v. serra, 2009 onca 105
income of $250,000 was imputed based on complex financial arrangements and asset-based lifestyle, despite claims of business losses.
key case: gainer v. gainer, 2006 canlii 12969
the court required both parties to draw from capital assets when neither had sufficient income post-retirement, highlighting that capital assets may be relevant to determining means.
lifestyle, assets, and support
a payor cannot maintain a lavish lifestyle while claiming inability to pay. lifestyle evidence may contradict financial disclosure and lead to income imputation.
key case: andrews v. andrews, 1999 canlii 3781
upheld spousal and child support equal to 60% of the payor’s net income, acknowledging the true cost of supporting a family.
capital assets, retirement, and double dipping
assets like pensions and rrsp income may be considered when assessing means—but courts aim to avoid double dipping, where assets equalized during property division are also treated as income.
key case: boston v. boston, 2001 scc 43
double dipping is allowed only when economic hardship continues and the payor has the ability to pay.
post-separation increases in income
courts may consider post-separation gains, particularly where the increase is substantial or closely follows separation.
key case: leskun v. leskun, 2006 scc 25
the court upheld the inclusion of post-separation capital assets in assessing ability to pay, rejecting the idea that only assets at separation matter.
spousal support obligations and child support
under s.15.3 of the divorce act, child support takes precedence over spousal support. this can affect whether spousal support is ordered or delayed.
key case: beck v. beckett, 2011 onca 559
spousal support was postponed until child support obligations ended, demonstrating this statutory priority.
best practices for individuals facing spousal support issues
if you are the payor:
maintain clear, honest financial records
avoid voluntary job changes that lower your income without cause
do not take on new debt or restructure finances to reduce obligations
seek legal advice before making major financial decisions
if you are the recipient:
document the payor's lifestyle and spending if it seems inconsistent with claimed income
be aware that voluntary reductions in the payor’s income may lead to income being imputed
understand that courts may consider both assets and income in assessing support
general advice:
if circumstances change (job loss, health issues), promptly seek a variation order
prepare detailed financial disclosure to support or defend claims
consider whether property division has adequately accounted for debts before relying on support
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understanding how a parent’s income is determined for child support is crucial. whether you are a support recipient or payor, knowing what qualifies as “income” and how the courts apply the federal child support guidelines (csgs) will help you make informed decisions.
1. what is considered “income” under the guidelines?
under section 15(1) of the csgs, a parent’s annual income is calculated using sections 16–20 and schedule iii. in many cases, the starting point is the amount shown on line 150 of the t1 general tax return, which includes all sources of income before deductions.
however, courts are not bound to use line 150 blindly. the income used must reflect the most current and accurate picture of a parent’s earnings.
key case: coghill v. coghill
this case emphasized that line 150 is not always conclusive. the court must use all sources of income listed under “total income” in the tax return and apply necessary adjustments under schedule iii.
2. use of the most current income information
the guidelines require the use of the most up-to-date financial information available. while past tax returns may be a helpful guide, they’re not always predictive of future income.
notable cases:
thompson v. thompson, 2013 onsc 5500: the court projected the upcoming year’s income based on a current pay stub.
l.(r.e.) v. l.(s.m.), 2007 abca 169: confirmed the use of current and accurate sources over historical income alone.
tauber v. tauber, 2001 onsc: despite a past high income, the court used pro forma tax estimates based on likely future earnings.
in short, courts focus on realistic, fair estimates of what a parent is expected to earn in the coming year.
3. adjustments to income – schedule iii
schedule iii allows courts to add to or subtract from income in certain situations. here are common scenarios:
deductions:
union dues and employment expenses are generally deductible (nason v. nason).
spousal support received and universal child care benefits (uccb) are deducted (caverley v. stanley).
non-recurring capital gains may be excluded or averaged (ewing v. ewing, 2009 abca 227).
additions:
stock options are added when exercised (marinangeli v. marinangeli).
capital cost allowance (cca) on real estate is added back into income unless proven reasonable (richardson v. richardson, 2013 bcca 378).
payments to non-arm’s length persons are scrutinized (strassburger v. strassburger).
4. sources of income considered
income sources can include:
employment and self-employment
commissions, pensions, ei, dividends, and rental income
cpp disability benefits, though only certain components are attributed to the payor
stock dividends and capital gains, depending on frequency and intent (spikula v. spikula)
some excluded sources include:
canada child benefit (ccb) – not considered income for base support.
student loans – generally not income, although grants and bursaries may be included if taxable (baerg v. baerg).
5. imputing income and discretion of the court
when income isn’t straightforward, courts may “impute” income under section 19 of the guidelines, particularly where:
a parent is intentionally unemployed or underemployed
expenses have been unreasonably deducted
income is hidden or artificially reduced
case in point: murphy v. murphy
outlined an 8-step approach to assess real income, including analyzing trust structures, asset holdings, and income potential.
6. shared, split custody and high-income scenarios
a custodial parent’s income is relevant in situations like:
shared custody (where time spent with each parent is about equal)
split custody
high-income earners (over $150,000/year)
requests for special expenses under section 7
claims of undue hardship
7. retroactive and prospective income calculations
for future support, courts focus on prospective earnings.
for retroactive claims, courts usually rely on actual past income, provided it's available (vanos v. vanos, 2010 onca 876).
8. special considerations for self-employed parents
if you’re self-employed, calculating income for child support purposes can be more complex. the courts recognize that business owners may report income differently for tax purposes than what they actually have available for support. that’s why the child support guidelines include detailed rules for self-employed individuals.
what counts as income?
self-employed income includes all revenues minus reasonable business expenses—but not all deductions allowed by the cra are accepted by the court. for instance:
capital cost allowance (depreciation) on real estate must usually be added back into income (richardson v. richardson, 2013 bcca 378).
payments to family members (non-arm’s length individuals) will be added back unless clearly necessary and reasonable (strassburger v. strassburger, 2010 onsc 1026).
business losses from side ventures may not be deductible—especially if the business is not generating a real profit (hargrove v. holliday, 2010 abqb 70).
key case: murphy v. murphy
this case outlined an 8-step process for analyzing the income of a self-employed parent, including:
reviewing business financial records
predicting future income based on current trends
checking for unreasonable or artificial deductions
assessing lifestyle compared to reported income
be prepared to show:
business financial statements
invoices, contracts, and receipts
year-to-date income and expenses
proof that deductions are necessary for earning income
courts are especially vigilant where corporate or trust structures are involved. if you control a company, the court may impute the corporation’s income to you directly, especially if you’re under-reporting personal income while leaving profits in the business (holtzman v. holtzman, 2013 skqb 408).
key tip:
keep your books clean. courts often look beyond the tax return and focus on what’s fair and reflective of your true income. having accurate and transparent records will help you avoid disputes or imputed income findings.
conclusion
determining income for child support is not as simple as looking at a tax return. courts use a flexible, context-specific approach that balances fairness, accuracy, and the child’s best interests. whether your income has fluctuated, includes non-standard sources, or involves self-employment, understanding how income is assessed under the guidelines is key to navigating your support obligations.
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what happens when a spouse hides income?
in ontario family law, courts may “impute income” to a parent or spouse who fails to provide full financial disclosure, underreports their earnings, or lives a lifestyle inconsistent with their reported income. this means a judge can assign a higher income than declared—leading to higher child support or spousal support payments.
what is “imputing income”?
imputing income means the court assigns an income to a person based on evidence other than tax returns or financial statements. this often occurs when:
the person fails to disclose income
their reported income is inconsistent with lifestyle
they are intentionally unemployed or under-employed
they receive unreported cash income or family financial help
bak v. dobell, 2007 onca 304: courts can draw inferences from a payor’s lifestyle but need an evidentiary foundation to determine a specific income.
legal authority: child support guidelines s.19(1)
courts may impute income if a parent:
is intentionally unemployed/under-employed (s.19(1)(a))
diverts income (s.19(1)(c))
fails to provide proper disclosure (s.19(1)(f))
lives a lifestyle suggesting undisclosed earnings
michaud v. kasali, 2016 onsc 443: income was imputed based on average annual spending minus declared income.
when will a court impute income?
1. failure to provide disclosure
a common ground. courts draw adverse inferences when parties ignore requests or court orders to provide tax returns, bank records, or business details.
smith v. smith, 2016 onsc 1157: father failed to disclose corporate records. court imputed $162,000/year based on personal expenses and shareholder loans.
jassa v. davidson, 2014 oncj 698: payor failed to disclose for over a year. $225,000 income imputed based on bank records, business operations, and lavish lifestyle.
2. lifestyle doesn’t match reported income
courts may impute income if your reported income doesn't explain how you afford your home, cars, vacations, or spending habits.
benevento v. benevento, 2015 onsc 6707: payor claimed $100k income, but lifestyle—including luxury cars, travel, and pool—suggested $200k.
heard v. heard, 2014 onca 196: trips to fiji and australia contradicted low-income claims. support obligations adjusted.
3. self-employment or cash business
self-employed individuals often trigger scrutiny. courts analyze corporate expenses, personal benefits, and cash income.
kuznetsova v. flores, 2016 oncj 203: court discredited inconsistent income reports and used actual payments to impute income.
price v. reid, 2013 oncj 373: self-employed barber ran a cash business with unexplained deposits. court imputed $43,935/year.
4. parental or third-party support
although gifts from family aren't income for tax purposes, courts may consider regular parental financial help when assessing actual ability to pay.
korman v. korman, 2015 onca 578: despite no dividend income, court considered over $1m in gifts from parents to impute income of $120,000/year.
5. intentional unemployment or underemployment
if a person deliberately reduces their income to avoid support, courts may base income on past earnings or earning potential.
stoodley v. klein, 2013 onsc 3058: payor claimed loss of business due to criminal convictions, but lavish lifestyle and $200k in deposits led to $125,000 imputation.
lindsay v. jeffrey, 2014 oncj 1: father claimed drug addiction as a reason for unemployment, but lacked evidence. court imputed income based on lifestyle and prior earnings.
how courts calculate imputed income
judges may base imputed income on:
past earnings
business and personal expenses
bank records and spending
cash flow from businesses or other ventures
comparable job market rates
michaud v. kasali: court used average of annual expenses to impute income.
abbott v. abbott, 2014 nltd(f) 2: disparity between reported income ($24k–$30k) and lifestyle led to imputed income of $85k–$95k.
imputed income cases often involve:
construction workers, barbers, or restaurant owners running cash-heavy businesses
self-employed professionals deducting excessive “business expenses”
property owners who under-report rental income
spouses hiding money through corporations or family members
neeteson v. neeteson, 2007 o.j. no. 4277: suv, hot tub, snowmobiles, and vacations inconsistent with claimed $48,000 income.
azimi v. mirzaei, 2007 onsc: mortgage broker with luxury lifestyle imputed $50,000 income despite reporting minimal earnings.
consequences of income imputation
higher child or spousal support
retroactive support arrears
reduced credibility in future motions
increased legal costs
maida v. maida, 2005: imputed income of $750,000 after repeated refusal to provide disclosure; ordered to pay $8,000/month in child support.
tips for clients: what you should know
disclose early and completely—bank statements, tax returns, business records
don’t assume low declared income will protect you
if self-employed, be prepared to explain cash flow, expenses, and personal benefits
courts consider lifestyle evidence, so be ready to justify travel, vehicles, and spendingimputing income ontario family law
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the interjurisdictional support orders act, 2002 (isoa) governs how child support and spousal support orders are recognized, enforced, and varied between ontario and other provinces or countries with which ontario has a support enforcement agreement. it replaces the older reciprocal enforcement of support orders act and streamlines the process, allowing for single-hearing proceedings instead of two-stage ones.
key features of the isoa
streamlined process for support applications
under the isoa, the person seeking support (the applicant) completes a standardized support application package. this includes:
details of the support claim
relevant legal documents or statutes (if applicable)
a sworn affidavit
financial and personal information about the respondent
the application is submitted to ontario’s designated authority, who forwards it to the appropriate authority in the reciprocating jurisdiction. this eliminates the need for applicants to personally serve the respondent or initiate proceedings in another jurisdiction.
simplified hearing and enforcement procedure
if the respondent is found and located within a reciprocating jurisdiction:
they are served with notice of the hearing and a request for documentation
if the respondent does not comply or attend, the court may proceed in their absence
courts can make final or temporary support orders, or adjourn hearings for up to 18 months
if the respondent cannot be located or resides outside canada, the application may be returned to ontario along with any findings on their whereabouts.
registration and enforcement of external orders
under part iii of the isoa, existing support orders (including temporary or varied orders) made outside ontario can be registered and enforced within ontario courts, unless:
a party was not given proper notice or opportunity to be heard
the original order violates ontario public policy
the originating court lacked jurisdiction
variation of existing support orders
part iv of the isoa allows ontario courts to vary support orders made in other reciprocating jurisdictions if they are registered in ontario. this part does not apply to orders made under the federal divorce act, unless a federal statute authorizes such variation.
parentage determination for child support
when applying for child support and no prior court ruling on parentage exists, ontario courts may determine parentage strictly for support purposes under section 12 of the isoa.
interjurisdictional enforcement of spousal support and child support
the isoa is a critical tool for enforcing spousal support and child support across provincial and international borders. its streamlined process ensures:
less delay in securing support
better access to justice for custodial parents and dependants
cooperation between jurisdictions for the best interests of the child
rules, regulations, and forms
to support the isoa’s implementation:
o. reg. 53/03 lists all reciprocating jurisdictions
o. reg. 55/03 outlines procedures and forms
o. reg. 54/03 and o. reg. 56/03 modify garnishment procedures and the family law rules
new and updated forms related to the isoa can be accessed via the ontario government’s official forms site. applicants can use an online checklist to identify required forms, each of which includes detailed instructions written in plain language.
best practices for clients dealing with interjurisdictional support
gather all documentation early – include income information, prior court orders, and parenting schedules.
consult the correct jurisdiction – verify whether the other party lives in a reciprocating jurisdiction.
use the government checklist – ensure all necessary forms are completed accurately.
be proactive about address changes – if the respondent moves, update the designated authority immediately.
cooperate with requests for additional information – courts may adjourn for up to 18 months while waiting for more details. delays may result in dismissal of your application.
keep communication records – document attempts to locate the respondent or communicate regarding support.
understand your rights if served – if you're the respondent and receive notice under the isoa, provide required documents and attend hearings to avoid orders made in your absence.
use plain-language resources – the forms and guides are designed for self-represented individuals. review these to better understand your obligations and rights.
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