This page is provided by Stephen R. Biss, Barrister & Solicitor for public information. I no longer practice family law. Please consult a Brampton family lawyer face-to-face. If you are a Brampton Family Law lawyer and you believe you have a web site to which this page should link please write to me. 

 

| Brampton Lawyer, Family Law Lawyer |

Brampton family law lawyers practice family law and divorce law in Brampton, Ontario, Canada. A Brampton family law lawyer is a member of the Law Society of Upper Canada. 

The  Law Society Referral Service is a very good way to find a Brampton lawyer who practices family law in Brampton and the surrounding region. 

 

Many Brampton family lawyers are members of the Peel Law Association. The PLA membership list is a good way to find a Brampton family law lawyer.

If you are a Brampton family law lawyer and you find an error on this page and help us to correct it, we will be happy to post a link to your Brampton or Mississauga law firm here.

 

 

 

Family Law Legislation Database 

(note: check currency with your lawyer)

 

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Court intervention limited

Arbitration Act

Section or Rule Number: 6.1

No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:

1. To assist the conducting of arbitrations.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Warrant to apprehend child in care

Child and Family Services Act

Section or Rule Number: 41

A justice of the peace may issue a warrant authorizing a peace officer or child protection worker to bring a child to a place of safety if the justice of the peace is satisfied on the basis of a peace officerís or child protection workerís sworn information that,

(a) the child is actually or apparently under the age of sixteen years and has left or been removed from a societyís lawful care and custody without its consent; and

(b) there are reasonable and probable grounds to believe that there is no course of action available other than bringing the child to a place of safety that would adequately protect the child. R.S.O. 1990, c. C.11, s. 41 (1).

(2) A justice of the peace shall not refuse to issue a warrant to a person under subsection (1) by reason only that the person may bring the child to a place of safety under subsection (4). R.S.O. 1990, c. C.11, s. 41 (2).

No need to specify premises

(3) It is not necessary in a warrant under subsection (1) to specify the premises where the child is located. R.S.O. 1990, c. C.11, s. 41 (3).

Apprehension of child in care without warrant

(4) A peace officer or child protection worker who believes on reasonable and probable grounds that,

(a) a child is actually or apparently under the age of sixteen years and has left or been removed from a societyís lawful care and custody without its consent; and

(b) there would be a substantial risk to the childís health or safety during the time necessary to obtain a warrant under subsection (1),

may without a warrant bring the child to a place of safety. R.S.O. 1990, c. C.11, s. 41 (4).

Apprehension of child absent from place of open temporary detention

(5) Where a child is detained under this Part in a place of safety that has been designated as a place of open temporary detention as defined in Part IV (Youth Justice) and leaves the place without the consent of,

(a) the society having care, custody and control of the child; or

(b) the person in charge of the place of safety,

a peace officer, the person in charge of the place of safety or that personís delegate may apprehend the child without a warrant. R.S.O. 1990, c. C.11, s. 41 (5); 2006, c. 19, Sched. D, s. 2 (7).

Idem

(6) A person who apprehends a child under subsection (5) shall,

(a) take the child to a place of safety to be detained until the child can be returned to the place of safety the child left; or

(b) return the child or arrange for the child to be returned to the place of safety the child left. R.S.O. 1990, c. C.11, s. 41 (6).

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Apprehension of child under twelve

Child and Family Services Act

Section or Rule Number: 44

A person authorized to bring a child to a place of safety by a warrant issued under subsection 41 (1) or 43 (2) may at any time enter any premises specified in the warrant, by force, if necessary, and may search for and remove the child. R.S.O. 1990, c. C.11, s. 44 (1).

Right of entry, etc.

(2) A person authorized under subsection 41 (4) or (5) or 42 (1) who believes on reasonable and probable grounds that a child referred to in the relevant subsection is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child. R.S.O. 1990, c. C.11, s. 44 (2).

Regulations re power of entry

(3) A person authorized to enter premises under this section shall exercise the power of entry in accordance with the regulations. R.S.O. 1990, c. C.11, s. 44 (3).

Police assistance

(4) A child protection worker acting under section 41 or 43 may call for the assistance of a peace officer. R.S.O. 1990, c. C.11, s. 44 (4).

Consent to examine child

(5) A child protection worker who deals with a child under subsection 42 (3) or 43 (5) as if the child had been taken to a place of safety may authorize the childís medical examination where a parentís consent would otherwise be required. R.S.O. 1990, c. C.11, s. 44 (5).

Place of open temporary detention

(6) Where a person who brings a child to a place of safety under section 41 or 42 believes on reasonable and probable grounds that no less restrictive course of action is feasible, the child may be detained in a place of safety that is a place of open temporary detention as defined in Part IV (Youth Justice). R.S.O. 1990, c. C.11, s. 44 (6); 2006, c. 19, Sched. D, s. 2 (8).

Protection from personal liability

(7) No action shall be instituted against a peace officer or child protection worker for any act done in good faith in the execution or intended execution of that personís duty under this section or section 41, 42 or 43 or for an alleged neglect or default in the execution in good faith of that duty. R.S.O. 1990, c. C.11, s. 44 (7).

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Time of detention limited

Child and Family Services Act

Section or Rule Number: 46

As soon as practicable, but in any event within five days after a child is brought to a place of safety under section 40 or subsection 79 (6) or a homemaker remains or is placed on premises under subsection 78 (2), (a) the matter shall be brought before a court for a hearing under subsection 47 (1) (child protection hearing); (b) the child shall be returned to the person who last had charge of the child or, where there is an order for the childís custody that is enforceable in Ontario, to the person entitled to custody under the order; or (c) a temporary care agreement shall be made under subsection 29 (1) of Part II (Voluntary Access to Services). Idem: place of open temporary detention (2) Within twenty-four hours after a child is brought to a place of safety that is a place of open temporary detention, or as soon thereafter as is practicable, the matter shall be brought before a court for a hearing and the court shall, (a) where it is satisfied that no less restrictive course of action is feasible, order that the child remain in the place of open temporary detention for a period or periods not exceeding an aggregate of thirty days and then be returned to the care and custody of the society; (b) order that the child be discharged from the place of open temporary detention and returned to the care and custody of the society; or (c) make an order under subsection 51 (2) (temporary care and custody). R.S.O. 1990, c. C.11, s. 46.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Child protection hearing

Child and Family Services Act

Section or Rule Number: 47

Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 57.

Childís name, age, etc.

(2)As soon as practicable, and in any event before determining whether a child is in need of protection, the court shall determine,

(a) the childís name and age;

(b) the religious faith, if any, in which the child is being raised;

(c) whether the child is an Indian or a native person and, if so, the childís band or native community; and

(d) where the child was brought to a place of safety before the hearing, the location of the place from which the child was removed.

Where sixteenth birthday intervenes

(3)Despite anything else in this Part, where the child was under the age of sixteen years when the proceeding was commenced or when the child was apprehended, the court may hear and determine the matter and make an order under this Part as if the child were still under the age of sixteen years. R.S.O. 1990, c. C.11, s. 47. Territorial jurisdiction 48. (1) In this section, ďterritorial jurisdictionĒ means a societyís territorial jurisdiction under subsection 15 (2). R.S.O. 1990, c. C.11, s. 48 (1). Place of hearing (2) A hearing under this Part with respect to a child shall be held in the territorial jurisdiction in which the child ordinarily resides, except that, (a) where the child is brought to a place of safety before the hearing, the hearing shall be held in the territorial jurisdiction in which the place from which the child was removed is located; (b) where the child is in a societyís care under an order for society wardship under section 57 or an order for Crown wardship under section 57 or 65.2, the hearing shall be held in the societyís territorial jurisdiction; and (c) where the child is the subject of an order for society supervision under section 57 or 65.2, the hearing may be held in the societyís territorial jurisdiction or in the territorial jurisdiction in which the parent or other person with whom the child is placed resides. R.S.O. 1990, c. C.11, s. 48 (2); 2006, c. 5, s. 7. Transfer of proceeding (3)Where the court is satisfied at any stage of a proceeding under this Part that there is a preponderance of convenience in favour of conducting it in another territorial jurisdiction, the court may order that the proceeding be transferred to that other territorial jurisdiction and be continued as if it had been commenced there. R.S.O. 1990, c. C.11, s. 48 (3). Orders affecting society (4)The court shall not make an order placing a child in the care or under the supervision of a society unless the place where the court sits is within the societyís territorial jurisdiction. R.S.O. 1990, c. C.11, s. 48 (4). Power of court

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Delay: court to fix date

Child and Family Services Act

Section or Rule Number: 52

Where an application is made under subsection 40 (1) or a matter is brought before the court to determine whether a child is in need of protection and the determination has not been made within three months after the commencement of the proceeding, the court,

(a) shall by order fix a date for the hearing of the application, and the date may be the earliest date that is compatible with the just disposition of the application; and

(b) may give such directions and make such orders with respect to the proceeding as are just. R.S.O. 1990, c. C.11, s. 52

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Order where child in need of protection

Child and Family Services Act

Section or Rule Number: 57

Where the court finds that a child is in need of protection and is satisfied that intervention through a court order is necessary to protect the child in the future, the court shall make one of the following orders or an order under section 57.1, in the childís best interests:

1. That the child be placed in the care and custody of a parent or another person, subject to the supervision of the society, for a specified period of at least three months and not more than 12 months.

2. That the child be made a ward of the society and be placed in its care and custody for a specified period not exceeding twelve months.

3. That the child be made a ward of the Crown, until the wardship is terminated under section 65.2 or expires under subsection 71 (1), and be placed in the care of the society.

Consecutive orders of society wardship and supervision

4. That the child be made a ward of the society under paragraph 2 for a specified period and then be returned to a parent or another person under paragraph 1, for a period or periods not exceeding an aggregate of twelve months. R.S.O. 1990, c. C.11, s. 57 (1); 2006, c. 5, s. 13 (1-3).

(2) In determining which order to make under subsection (1) or section 57.1, the court shall ask the parties what efforts the society or another agency or person has made to assist the child before intervention under this Part. 2006, c. 5, s. 13 (4).

(3)The court shall not make an order removing the child from the care of the person who had charge of him or her immediately before intervention under this Part unless the court is satisfied that alternatives that are less disruptive to the child, including non-residential services and the assistance referred to in subsection (2), would be inadequate to protect the child. 1999, c. 2, s. 15 (1).

Community placement to be considered

(4)Where the court decides that it is necessary to remove the child from the care of the person who had charge of him or her immediately before intervention under this Part, the court shall, before making an order for society or Crown wardship under paragraph 2 or 3 of subsection (1), consider whether it is possible to place the child with a relative, neighbour or other member of the childís community or extended family under paragraph 1 of subsection (1) with the consent of the relative or other person. R.S.O. 1990, c. C.11, s. 57 (4).

(5)Where the child referred to in subsection (4) is an Indian or a native person, unless there is a substantial reason for placing the child elsewhere, the court shall place the child with,

(a) a member of the childís extended family;

(b) a member of the childís band or native community; or

(c) another Indian or native family. R.S.O. 1990, c. C.11, s. 57 (5).

(6) Repealed: 1999, c. 2, s. 15 (2).

(7)When the court has dispensed with notice to a person under subsection 39 (7), the court shall not make an order for Crown wardship under paragraph 3 of subsection (1), or an order for society wardship under paragraph 2 of subsection (1) for a period exceeding thirty days, until a further hearing under subsection 47 (1) has been held upon notice to that person. R.S.O. 1990, c. C.11, s. 57 (7).

Terms and conditions of supervision order

(8) If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,

(a) reasonable terms and conditions relating to the childís care and supervision;

(b) reasonable terms and conditions on,

(i) the childís parent,

(ii) the person who will have care and custody of the child under the order,

(iii) the child, and

(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and

(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services. 2006, c. 5, s. 13 (5).

Where no court order necessary

(9) Where the court finds that a child is in need of protection but is not satisfied that a court order is necessary to protect the child in the future, the court shall order that the child remain with or be returned to the person who had charge of the child immediately before intervention under this Part. R.S.O. 1990, c. C.11, s. 57 (9).

Note: Despite the proclamation of the Statutes of Ontario, 1999, chapter 2, section 15, section 57 of this Act, as it read before March 31, 2000, continues to apply with respect to any proceeding under Part III, including a status review proceeding, that was commenced before March 31, 2000. See: 1999, c. 2, ss. 37 (5), 38.

Custody order

57.1 (1) Subject to subsection (6), if a court finds that an order under this section instead of an order under subsection 57 (1) would be in a childís best interests, the court may make an order granting custody of the child to one or more persons, other than a foster parent of the child, with the consent of the person or persons. 2006, c. 5, s. 14.

Deemed to be order under Childrenís Law Reform Act

(2) An order made under subsection (1) and any access order under section 58 that is made at the same time as the order under subsection (1) shall be deemed to be made under section 28 of the Childrenís Law Reform Act and the court,

(a) may make any order under subsection (1) that the court may make under section 28 of that Act; and

(b) may give any directions that it may give under section 34 of that Act. 2006, c. 5, s. 14.

Order restraining harassment

(3) When making an order under subsection (1), the court may, without a separate application under section 35 of the Childrenís Law Reform Act,

(a) make an order restraining any person from molesting, annoying or harassing the child or a person to whom custody of the child has been granted; and

(b) require the person against whom the order is made to enter into such recognizance or post such bond as the court considers appropriate. 2006, c. 5, s. 14.

Same

(4) An order under subsection (3) is deemed to be a final order made under section 35 of the Childrenís Law Reform Act and may be enforced, varied or terminated only in accordance with that Act. 2006, c. 5, s. 14.

Appeal under s. 69

(5) Despite subsections (2) and (4), an order under subsection (1) or (3) and any access order under section 58 that is made at the same time as an order under subsection (1) are orders under this Part for the purposes of appealing from the orders under section 69. 2006, c. 5, s. 14.

Conflict of laws (6) No order shall be made under this section if,

(a) an order granting custody of the child has been made under the Divorce Act (Canada); or

(b) in the case of an order that would be made by the Ontario Court of Justice, the order would conflict with an order made by a superior court. 2006, c. 5, s. 14.

Application of s. 57 (3)

(7) Subsection 57 (3) applies for the purposes of this section. 2006, c. 5, s. 14.

Effect of custody proceedings

57.2 If, under this Part, a proceeding is commenced or an order for the care, custody or supervision of a child is made, any proceeding respecting custody of or access to the same child under the Childrenís Law Reform Act is stayed except by leave of the court in the proceeding under that Act. 2006, c. 5, s. 15.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Father and mother entitled to custody

Children's Law Reform Act

Section or Rule Number: 20

(1) Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child. R.S.O. 1990, c. C.12, s. 20 (1).

Rights and responsibilities (2) A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. R.S.O. 1990, c. C.12, s. 20 (2).

Authority to act (3) Where more than one person is entitled to custody of a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child. R.S.O. 1990, c. C.12, s. 20 (3).

Where parents separate (4) Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. R.S.O. 1990, c. C.12, s. 20 (4).

Note: On a day to be named by proclamation of the Lieutenant Governor, section 20 is amended by section 77 by adding the following subsection:

Duty of separated parents (4a) Where the parents of a child live separate and apart and the child is in the custody of one of them and the other is entitled to access under the terms of a separation agreement or order, each shall, in the best interests of the child, encourage and support the childís continuing parent-child relationship with the other. R.S.O. 1990, c. C.12, s. 77. See: R.S.O. 1990, c. C.12, ss. 77, 85.

Access (5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. R.S.O. 1990, c. C.12, s. 20 (5).

Marriage of child (6) The entitlement to custody of or access to a child terminates on the marriage of the child. R.S.O. 1990, c. C.12, s. 20 (6). Entitlement subject to agreement or order

(7) Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement. R.S.O. 1990, c. C.12, s. 20 (7).

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Application for custody or access

Children's Law Reform Act

Section or Rule Number: 21

A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. R.S.O. 1990, c. C.12, s. 21.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Serious harm to child

Children's Law Reform Act

Section or Rule Number: 23

Despite sections 22 and 41, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child where,

(a) the child is physically present in Ontario; and

(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,

(i) the child remains in the custody of the person legally entitled to custody of the child,

(ii) the child is returned to the custody of the person legally entitled to custody of the child, or

(iii) the child is removed from Ontario. R.S.O. 1990, c. C.12, s. 23.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Minister has powers of board

Children's Law Reform Act

Section or Rule Number: 24

The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child (2) The court shall consider all the childís needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the childís family who reside with the child, and

(iii) persons involved in the childís care and upbringing;

(b) the childís views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the childís care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1).

(3) A personís past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the personís ability to act as a parent. 2006, c. 1, s. 3 (1).

(4) In assessing a personís ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the personís household; or

(d) any child. 2006, c. 1, s. 3 (1).

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Child Support/Maintenance

Divorce Act

Section or Rule Number: 15.1

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Spousal Support/Maintenance

Divorce Act

Section or Rule Number: 15.2

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The section data above may not be current. Please check statute at government site and consult with your own lawyer to ensure currency. 

Canada Statutes   Ontario Statutes 

 

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Child Custody & Access

Divorce Act

Section or Rule Number: 16

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

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Variation of Support, Custody & Access

Divorce Act

Section or Rule Number: 17

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

(7) A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

(8) [Repealed, 1997, c. 1, s. 5]

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

(11) Where a court makes a variation order in respect of a support order or a custody order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.

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Child Support Guidelines Regs

Divorce Act

Section or Rule Number: 26.1

26.1 (1) The Governor in Council may establish guidelines respecting the making of orders for child support, including, but without limiting the generality of the foregoing, guidelines

(a) respecting the way in which the amount of an order for child support is to be determined;

(b) respecting the circumstances in which discretion may be exercised in the making of an order for child support;

(c) authorizing a court to require that the amount payable under an order for child support be paid in periodic payments, in a lump sum or in a lump sum and periodic payments;

(d) authorizing a court to require that the amount payable under an order for child support be paid or secured, or paid and secured, in the manner specified in the order;

(e) respecting the circumstances that give rise to the making of a variation order in respect of a child support order;

(f) respecting the determination of income for the purposes of the application of the guidelines;

(g) authorizing a court to impute income for the purposes of the application of the guidelines; and

(h) respecting the production of income information and providing for sanctions when that information is not provided.

(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.

(3) In subsection (1), "order for child support" means

(a) an order or interim order made under section 15.1;

(b) a variation order in respect of a child support order; or

(c) an order or an interim order made under section 19.

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Jurisdiction for Divorce

Divorce Act

Section or Rule Number: 3(1)

3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

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Jurisdiction Corollary Relief

Divorce Act

Section or Rule Number: 4(1)

4. (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

(a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

(b) both former spouses accept the jurisdiction of the court.

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Jurisdiction for Variation

Divorce Act

Section or Rule Number: 5(1)

5. (1) A court in a province has jurisdiction to hear and determine a variation proceeding if

( a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

( b) both former spouses accept the jurisdiction of the court.

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Grounds for Divorce

Divorce Act

Section or Rule Number: 8

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

(3) For the purposes of paragraph (2)(a),

(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouseís own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

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Alienation of matrimonial home

Family Law Act

Section or Rule Number: 21(1)(a)

No spouse shall dispose of or encumber an interest in a matrimonial home unless, (a) the other spouse joins in the instrument or consents to the transaction

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Obligation of spouses for support

Family Law Act

Section or Rule Number: 30

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c. F.3, s. 30; 1999, c. 6, s. 25 (3); 2005, c. 5, s. 27 (7).

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Obligation of parent to support child

Family Law Act

Section or Rule Number: 31

Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).

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Obligation of child to support parent

Family Law Act

Section or Rule Number: 32

Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. R.S.O. 1990, c. F.3, s. 32.

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Child Support Guidelines

Family Law Act

Section or Rule Number: 33(11)

A court making an order for the support of a child shall do so in accordance with the child support guidelines. 1997, c. 20, s. 3 (4).

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Purposes of order for support of child

Family Law Act

Section or Rule Number: 33(7)

An order for the support of a child should, (a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines. R.S.O. 1990, c. F.3, s. 33 (7); 1997, c. 20, s. 3 (1).

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Purposes of order for support of spouse

Family Law Act

Section or Rule Number: 33(8)

An order for the support of a spouse should,

(a) recognize the spouseís contribution to the relationship and the economic consequences of the relationship for the spouse

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). R.S.O. 1990, c. F.3, s. 33 (8); 1999, c. 6, s. 25 (5); 2005, c. 5, s. 27 (9).

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Determination of amount for support of spouses, parents

Family Law Act

Section or Rule Number: 33(9)

In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependantís and respondentís current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependantís capacity to contribute to his or her own support;

(d) the respondentís capacity to provide support;

(e) the dependantís and respondentís age and physical and mental health;

(f) the dependantís needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondentís career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouseís earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the familyís support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouseís earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money. R.S.O. 1990, c. F.3, s. 33 (9); 1997, c. 20, s. 3 (2, 3); 1999, c. 6, s. 25 (6-9); 2005, c. 5, s. 27 (10-13).

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Domestic contract, etc., may be filed with court

Family Law Act

Section or Rule Number: 35(1)(2)

A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the personís affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement. R.S.O. 1990, c. F.3, s. 35 (1); 2006, c. 1, s. 5 (2); 2006, c. 19, Sched. C, s. 1 (2, 4).

(2) A provision for support or maintenance contained in a contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37; and

(c) except in the case of a provision for the support of a child, may be increased under section 38,

as if it were an order of the court where it is filed. 1997, c. 20, s. 5; 2006, c. 1, s. 5 (3).

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Application for variation

Family Law Act

Section or Rule Number: 37

An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6. Powers of court: spouse and parent support

(2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependantís or respondentís circumstances or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33. 1997, c. 20, s. 6; 1999, c. 6, s. 25 (12); 2005, c. 5, s. 27 (16).

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. 1997, c. 20, s. 6.

(2.3) Despite subsection (2.2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,

(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions. 1997, c. 20, s. 6.

(2.4) Where the court awards, under subsection (2.3), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so. 1997, c. 20, s. 6.

(2.5) Despite subsection (2.2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,

(a) reasonable arrangements have been made for the support of the child to whom the order relates; and

(b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines. 1997, c. 20, s. 6.

(2.6) For the purposes of clause (2.5) (a), in determining whether reasonable arrangements have been made for the support of a child,

(a) the court shall have regard to the child support guidelines; and

(b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines. 1997, c. 20, s. 6.

(3) No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court. R.S.O. 1990, c. F.3, s. 37 (3).

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Restraining orders

Family Law Act

Section or Rule Number: 40

The court may, on application, make an interim or final order restraining the depletion of a spouseís property that would impair or defeat a claim under this Part. R.S.O. 1990, c. F.3, s. 40; 1999, c. 6, s. 25 (18); 2005, c. 5, s. 27 (21).

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Order restraining harassment

Family Law Act

Section or Rule Number: 46 (1)(2)

On application, a court may make an interim or final order restraining the applicantís spouse or former spouse from molesting, annoying or harassing the applicant or children in the applicantís lawful custody, or from communicating with the applicant or children, except as the order provides, and may require the applicantís spouse or former spouse to enter into the recognizance that the court considers appropriate. R.S.O. 1990, c. F.3, s. 46 (1); 1999, c. 6, s. 25 (20); 2005, c. 5, s. 27 (23).

(2) A person who contravenes a restraining order is guilty of an offence and upon conviction is liable,

(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and

(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both. R.S.O. 1990, c. F.3, s. 46 (2).

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Marriage contracts

Family Law Act

Section or Rule Number: 52

Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 52 (1); 2005, c. 5, s. 27 (25).

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Separation agreements

Family Law Act

Section or Rule Number: 54

Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).

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Family Law Rules

Family Law Rules Forms

Family Law Programs and Services in Ontario

Family Responsibility Office Forms

 

Other Family Court Addresses

 

 

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