Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

In our previous lecture we talked about some of the avenues resulting in family law disputes. In today’s lecture will talk about the applicable legislation. If you have a family law dispute and you need to go to court what are some of the different legislations that may apply to your scenario.

We begin with our usual disclaimer that this lecture is not legal advice. If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

What are the legislations that impacts family law in Ontario? There are 4 pieces of legislation.

A. Family Law Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/

B. Divorce Act: https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html

C. Children’s Law Reform Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-c12/latest/rso-1990-c-c12.html

D. Child, Youth and Family Services Act, 2017: https://www.canlii.org/en/on/laws/stat/so-2017-c-14-sch-1/latest/so-2017-c-14-sch-1.html

A. Family Law Act: is a provincial legislation and what does it cover? It covers the division of family property; it covers the issues relating to matrimonial home; it deals with support obligations regarding child and spousal support, both; it deals with domestic contracts and then it deals with dependents claims for damages. I have provided the link here and I will also post it in the youtube posting. I’ll post the link so you can access this.

This is what the Family Law Act looks like. It says R.S.O1990 cF. 3. RSO means revised statute of Ontario. When there is an “O”, that indicates that it’s an Ontario statute. If it said “RSC”, that means revised statute of Canada. So, this is a provincial legislation. And you will see here that it has separate, different parts. One part deals with family property, the matrimonial home, support obligations, domestic contracts.

(a) Domestic contracts. Is dealt with here because it deals with all kinds of domestic contracts—marriage contract, cohabitation agreement and separation agreement. What it does is: this legislation provides certain clauses that deal with those marriage contracts. For example, in marriage contracts parties can enter into a marriage agreement. But when a marriage contract deals with the matrimonial home or its disposition, then that clause is unenforceable in a marriage contract pursuant to this legislation. So, it’s important to understand what is the framework of domestic contracts that is permissible for parties to enter into.

(b) Then there is dependents claim for damages: what this section or this part allows, is it allows dependents of certain people to claim damages. For example, if a person was injured because of the negligence of another person or died because of the negligence of another person, then the person who was injured or the person who died, his or her spouse, children, parents, grandparents or siblings may have certain rights to claim damages against the person who caused—who was negligent and who caused the injury or death. This is the part of the Family Law Act which allows that kind of a claim to be made in a personal injury, by a negligent client.

(c) Now it is important to note that the Family Law Act does not deal with custody and access issues. It does not deal with custody and excess and it does not deal with divorce. It is dealing with division of family property, matrimonial home, support obligations but no information, no guidance, no legislation on custody and access in the Family Law Act.

B. Now we will figure out where we find legislation with respect to custody and access. The second legislation I want to talk about is Divorce Act. Divorce Act is a federal statute. It deals with divorce. Couples who are married legally married they can obtain the wars under the under the Divorce Act. A common-law couple does not need to seek a divorce. They do not need to seek any court order for their separation—with respect to the separation itself. Now because the Divorce Act deals with married couples, it does provide for child and support obligations but this is only for married couples. Remember I showed you in Family Law Act that people can seek child and spousal support. So Family Law Act would apply to either married or common-law couples but Divorce Act only applies to people who are married. Under this Act only married people can seek child and spousal support.

Similarly, this Act provides for custody and access and again it only applies to married couples. Family Law Act deals with either married or common law couples—it deals with their spousal support and child support obligations. Family Law Act does not deal with custody and access. Divorce Act deals with only for married couples.

C. The third legislation that comes into discussion is Children’s Law Reform Act. And again, this is a provincial statute and this statute deals with custody and access issues for all parents. I’m going to quickly show you the Divorce Act. Again this is RSC—revised statute of Canada. It deals with divorce—and under the Corollary Relief Section, it deals with child and support orders, spousal support orders and then custody orders. These are people who are married. Then with respect to Children’s Law Reform Act, again, which is an Ontario statute, it deals with custody, access and guardianship and provides for the custody and access orders. Custody and access for all parents can be dealt with by Children’s Law Reform Act. There’s a section about parenting which explains—it actually indicates what is a parent under law. There are also issues of guardianship of a child’s property—if a child owns certain property—then who is to be the guardian of that property—that is also dealt with under this legislation. Then if a child’s property needs to be disposed off, then what are the laws with respect to that, is dealt in this statute.

D. The final legislation that I want to talk about today is called Child Youth and Family Services Act, 2017, which is right here. Again, it’s an Ontario statute. Essentially, this provincial statute deals with the rights of children and youth. It specifies what are their rights. And deals with child protection matters—Children’s Aid Society, Foster Parenting—all of these are covered under this particular legislation. What is also important to know is that all adoption matters are also dealt with under this specific legislation.

These are the four legislations that you may be dealing with, with respect to a family law dispute depending upon your circumstances. It is important for you to understand which specific legislation applies to your circumstances. In our previous lecture we discussed which specific court would have jurisdiction to deal with your matter. If you go to the wrong court, you will not be able to get the relief that you are seeking because the court does not have jurisdiction. Similarly, when you’re asking for a legal relief you need to know which specific legislation applies to your case and the specific circumstances of your case and there is some overlap between these legislations. It’s not one legislation that deals with that. Ideally, everyone would have preferred that there was a one-stop-shop—one legislation that could have dealt with all family law matters—but there are reasons for having these different legislations. Federal government has certain jurisdiction to deal with marriages and divorce. Provincial government has certain jurisdiction. All of that comes into play and then each of these legislations has different functions and their basis for creation is slightly different from each other. That’s why there is an overlap and you need to understand all of that. Also it is important to understand the contents of these legislations so you know in the specific circumstances of your case, how this legislation would apply.

Hopefully, that gives you an understanding of the legislation in Ontario. This is only for Ontario. Just to keep in mind that if you’re dealing with these matters in another province then the Divorce Act will apply to all provinces and territories of Canada but the Family Law Act would differ from province to province. Make sure that you review those legislations as well.

Thank-you for watching.