Sources and References

• Mossman, M.J., Bakht, N., Gruben, V., & Pearlston, K. (2015). Families and the Law: Cases and Commentary (3rd Edition). Concord, ON: Captus Press.
• Brownstone, H. (2009). Tug of War: A Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. Toronto: ECW Press.
• Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (as amended 2021)
• Family Law Act, R.S.O. 1990, c. F.3
• Children’s Law Reform Act, R.S.O. 1990, c. C.12 (as amended)
• Child, Youth and Family Services Act, S.O. 2017, c. 14, Sched. 1
• Assisted Human Reproduction Act, S.C. 2004, c. 2
• Federal Child Support Guidelines, SOR/97-175
• Spousal Support Advisory Guidelines (Rogerson & Thompson, 2008, updated 2016)
• Civil Marriage Act, S.C. 2005, c. 33
• Chomos v. Hamilton, 2016 ONSC [custody case study]

Chapter 1: Orientation — Why Family Law Matters for SMF Professionals

1.1 The Social Phenomenon of Relationship Breakdown

Relationship breakdown — separation, divorce, the dissolution of cohabiting partnerships — is not merely a private emotional event. It is a moment at which the private life of a family collides with the public architecture of law, courts, and state intervention. For students in the Social Development Studies and Social Work & Marriage and Family (SMF) stream, understanding this collision is foundational. Counsellors, family mediators, child advocates, social workers, and parenting coordinators all operate in spaces shaped by legal rules they did not make and may not fully understand. This course is designed to close that gap.

Canadian family law is a patchwork of federal and provincial authority. The Constitution Act, 1867 grants Parliament jurisdiction over marriage and divorce (s. 91(26)), while property and civil rights — including most of family property law — fall to the provinces (s. 92(13)). The result is that a divorcing couple in Ontario is simultaneously subject to the federal Divorce Act (for divorce itself, parenting arrangements, and spousal support) and to Ontario’s Family Law Act (for property division) and the Children’s Law Reform Act (for parentage and custody when the parties are not married). No other area of Canadian law so routinely requires practitioners to navigate two legislative regimes at once.

Beyond the statutes, family law is saturated with judicial discretion. Unlike criminal law, where a defined act leads to a defined penalty, family law outcomes are largely determined by open-textured standards such as “the best interests of the child” or “unconscionability.” That discretion makes legal outcomes uncertain — and it makes the interpretive, relational skills of SMF professionals genuinely valuable inside the legal process, not just alongside it.

1.2 The Epilogue Perspective: Where Has Family Law Been, Where Is It Going?

Mossman’s Epilogue (pp. 987–990) offers a retrospective on the transformations that have reshaped Canadian family law over the past half-century. Among the most significant:

• The shift from fault-based to no-fault divorce (1968, 1986 amendments to the Divorce Act)
• The recognition of same-sex marriage (2005 Civil Marriage Act)
• The expansion of legal parenthood beyond the biological dyad (AHR Act; provincial amendments)
• Growing recognition that Indigenous families have been systematically harmed by the legal system — from residential schools to the Sixties Scoop — requiring law to reckon with its own role in that harm
• The emergence of shared parenting as a dominant paradigm, and the 2021 amendments replacing the terms “custody” and “access” with “decision-making responsibility” and “parenting time”

The Epilogue frames family law not as a stable body of rules but as a field in ongoing negotiation between competing social values: individual autonomy, child welfare, gender equality, cultural recognition, and the limits of state power.

1.3 Brownstone’s Ground-Level View

Judge Harvey Brownstone’s Tug of War (Chapters 1–4) provides the practitioner’s corrective to the textbook abstraction. Writing as a family court judge, Brownstone is frank: family court is often the worst day of people’s lives, and the adversarial system frequently makes things worse. His early chapters establish several themes that will recur throughout this course:

These themes are not merely anecdotal. They are corroborated by empirical research on the effects of high-conflict separation on child outcomes, and they explain why SMF programs increasingly regard family law literacy as a core professional competency.

Chapter 2: The Legal System — Courts, Process, and Jurisdiction

2.1 Federal vs. Provincial Jurisdiction in Family Law

The division of powers in Canadian family law can be summarized as follows:

The key practical implication: married couples divorcing in Ontario will invoke both federal and provincial statutes in a single proceeding. Unmarried couples cannot use the Divorce Act at all; they must rely entirely on provincial legislation, which in Ontario provides somewhat different (and in some respects more limited) rights.

2.2 The Ontario Court Hierarchy

Ontario Court of Justice (OCJ): The trial-level court of provincial jurisdiction. It hears the vast majority of family law matters in Ontario, including child protection applications, child support, custody and access (now parenting time), and restraining orders. It does not have jurisdiction over divorce or property division. Many family courts operate as “Unified Family Courts” (UFCs), which combine the jurisdiction of the OCJ and the Superior Court into a single court, reducing the need for parties to navigate two systems.

Superior Court of Justice (SCJ): The federally-appointed trial court. It has inherent jurisdiction and hears divorce proceedings, property division, and all matters the OCJ cannot hear. It also hears appeals from the OCJ in some contexts.

Ontario Court of Appeal (OCA): The intermediate appellate court. Appeals from the SCJ in family matters go here. The OCA’s decisions are binding on all lower Ontario courts and are highly persuasive in other provinces.

Supreme Court of Canada (SCC): The final appellate court. SCC decisions on family law — such as Bracklow v. Bracklow (spousal support) or Miglin v. Miglin (separation agreements) — are binding across Canada.

2.3 The Litigation Process in Family Court

A family law proceeding in Ontario typically follows this sequence, though it varies considerably based on the specific matter and the court:

1. Application or Petition: The proceeding is commenced by filing an Application (in Ontario family courts) or a Petition for Divorce (in Superior Court). The applicant sets out the relief claimed.

2. Answer and Reply: The respondent files an Answer within a set time, admitting or denying the claims and setting out any counter-claims.

3. Financial Disclosure: Both parties are required to file a Form 13 (Financial Statement) disclosing income, expenses, assets, and debts. Failure to disclose fully is a serious legal wrong and can result in adverse inferences or cost awards.

4. Case Conference: A mandatory early meeting with a judge or case management master, focused on identifying issues, encouraging settlement, and setting a procedural schedule. This is often the first time the parties’ positions are tested against judicial scrutiny.

5. Settlement Conference: A more focused judicial meeting aimed at resolving issues before trial. The judge can make recommendations but cannot impose a decision (unless the parties consent).

6. Trial Management Conference: A procedural meeting to finalize trial preparation, identify witnesses, and narrow contested issues.

7. Trial: A full adversarial hearing before a judge (no juries in family law). The judge hears evidence, assesses credibility, and applies the law to make final orders.

8. Appeal: Either party may appeal a final order, subject to leave requirements and strict timelines.

2.4 Alternative Dispute Resolution

Given the costs, delays, and emotional toll of litigation, Canadian family law has increasingly embraced ADR mechanisms. These are not alternatives to the law — they operate in its shadow, and any agreement reached must still be assessed against legal standards to be enforceable.

Negotiation: Direct negotiation between parties or their lawyers. The most common form of dispute resolution; it produces Separation Agreements governed by the Family Law Act s. 54.

Mediation: A neutral third party (the mediator) facilitates negotiation but does not impose a result. The mediator may be a lawyer, a social worker, or a mental health professional with ADR training. Mediation is voluntary (absent a court order) and confidential. It is generally faster and cheaper than litigation and tends to produce higher compliance with outcomes.

Collaborative Law: Each party retains a specially trained collaborative lawyer, and both lawyers and parties sign a participation agreement committing to resolve matters without litigation. The collaborative process typically also involves financial neutrals and mental health coaches. If the process breaks down, both lawyers must withdraw and the parties must retain new counsel for litigation.

Arbitration: A private, binding adjudication in which an arbitrator (often a retired judge or senior family law lawyer) hears evidence and makes a binding decision called an award. Arbitration is faster than litigation and allows parties to choose their decision-maker, but it is more expensive per day than court. Awards are reviewable by courts on questions of law.

Parenting Coordination: A hybrid process combining mediation and arbitration, used in high-conflict co-parenting situations. The parenting coordinator helps parents resolve day-to-day parenting disputes and, where they cannot agree, can make binding decisions on minor issues. Parenting coordinators are typically mental health or legal professionals with specialized training.

Chapter 3: Forming Families — Legal Marriage

3.1 Why Marriage Has Legal Significance

Marriage is a legal status, not merely a social or religious event. The moment two people are legally married, they acquire a complex bundle of rights and obligations — to support each other, to share property accumulated during the marriage, to be recognized as each other’s next of kin in medical and inheritance contexts, and more. Understanding how marriage is legally formed — and what happens when it is not validly formed — is therefore foundational to understanding the rest of family law.

In Canada, the federal government has jurisdiction over “marriage” under s. 91(26) of the Constitution Act, 1867, but this jurisdiction is understood to apply to the capacity to marry (who may marry whom). The formalities of marriage — the ceremony, the licence, the registration — are matters of provincial law under s. 92(12) (“solemnization of marriage”). In Ontario, the governing provincial statute is the Marriage Act, R.S.O. 1990, c. M.3.

3.2 Requirements for a Valid Marriage

For a marriage to be legally valid in Canada, three categories of requirements must be met:

Legal Capacity

Age: Both parties must be at least 16 years of age in Ontario. (Prior to amendments, 16- and 17-year-olds could marry with parental consent; the current minimum has been interpreted to reflect evolving standards on child marriage.)

Single status (no prior undissolved marriage): Neither party may be currently married to anyone else. Bigamy is a criminal offence (Criminal Code s. 290) as well as a ground for finding a marriage void.

Not within prohibited degrees of consanguinity or affinity: Marriage between close relatives — parents and children, siblings, and certain other relationships — is prohibited. The prohibited degrees are set out in the Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46.

Opposite-sex rule abolished: The Civil Marriage Act (2005) extended marriage to same-sex couples throughout Canada, defining civil marriage as “the lawful union of two persons to the exclusion of all others.”

Genuine Consent

Both parties must freely and voluntarily consent to the marriage. Consent is vitiated (invalid) by:

• Duress: Force or threats that override the will of a party
• Fraud or misrepresentation: A party is deceived about an essential aspect of the marriage (note: courts apply this narrowly; misrepresentation about wealth or character generally does not vitiate consent)
• Mistake as to the nature of the ceremony: A party does not understand that they are participating in a marriage
• Mental incapacity: A party lacks the cognitive ability to understand and consent to the marriage at the time of the ceremony

Formal Requirements (Solemnization)

In Ontario, the Marriage Act requires:

• A valid marriage licence (or publication of banns)
• Solemnization by an authorized person (a judge, justice of the peace, or licensed religious official)
• At least two witnesses present
• Registration of the marriage with the province

3.3 Void vs. Voidable Marriages

A marriage that does not comply with the legal requirements may be either void or voidable. This distinction has significant practical consequences.

Void marriages are treated as if they never existed. No court order is required to establish that the marriage is void (though a declaration may be sought for certainty). Neither party has rights arising from the marriage (e.g., spousal support, property rights). Grounds for void marriage include:

• Bigamy (one party was already married)
• Prohibited degree of consanguinity
• Incapacity based on age (below the minimum)

Voidable marriages are valid unless and until a court annuls them. Only one of the parties (not a third party) can seek an annulment, and they must do so within the marriage — living together after discovering the ground typically results in condonation, which bars the annulment. Grounds for voidable marriage include:

• Lack of genuine consent (duress, fraud in some cases)
• Inability to consummate the marriage (in some circumstances)
• Mental incapacity (where not severe enough to make the marriage void)

3.4 Indigenous Marriage Ceremonies and Recognition in Ontario

The recognition of Indigenous marriage ceremonies in Ontario represents an important and evolving area of family law. Historically, Canadian law required marriages to comply with provincial Marriage Act formalities, which did not accommodate Indigenous ceremonial practices. This exclusion reflected broader patterns of colonial law’s failure to recognize Indigenous legal orders and family structures.

Contemporary Ontario policy has moved toward greater accommodation. Indigenous ceremonies conducted according to the traditions of a First Nation may be recognized as valid in Ontario when performed by a person authorized by their community to solemnize marriages. The Marriage Act provisions for exemptions and the Governor in Council’s power to exempt specific persons or classes of persons have been invoked in some contexts to provide this recognition.

The deeper issue, from a critical legal studies perspective, is not merely administrative accommodation but rather the question of whether Indigenous legal orders — including laws governing family formation, kinship, and parenthood — have their own inherent validity independent of provincial recognition. The Royal Commission on Aboriginal Peoples and subsequent scholarship argue that they do, and that the colonial legal system’s claim to be the exclusive arbiter of valid family formation is itself a form of ongoing colonialism.

3.5 Common-Law and Cohabiting Relationships

Not all intimate partnerships are marriages. A significant and growing proportion of Canadian couples live together without marrying. The legal rights and obligations of these couples depend heavily on provincial legislation and the specific matter at issue.

Terminology

In Ontario, the term “spouse” is defined differently in different statutes:

• Under the Family Law Act, “spouse” for property purposes (Part I) means only legally married spouses. Common-law partners do not share in property equalization under Part I.
• Under the Family Law Act for spousal support purposes (Part III), “spouse” includes persons who have cohabited continuously for at least three years, or who have cohabited in a relationship of some permanence and are the parents of a child together (s. 29).
• Under the Divorce Act, only legally married persons can divorce.

Rights and Obligations of Common-Law Partners in Ontario

This asymmetry — where common-law couples have support rights but not property rights — is frequently misunderstood by the public, who often believe in a “common-law marriage” that automatically replicates legal marriage after a certain period. That belief is incorrect in Ontario.

Trends and Policy Debates

The trend in Canadian family law has been toward greater recognition of common-law relationships. British Columbia’s Family Law Act (2011) treats common-law and married couples virtually identically after two years of cohabitation. Quebec, which does not automatically confer property or support rights on common-law partners, has faced Charter challenges on equality grounds. Ontario’s approach remains a middle position.

From a feminist legal theory perspective, the exclusion of common-law partners from property rights disproportionately harms women, who are more likely than men to have reduced their workforce participation during cohabitation and who face economic disadvantage on breakdown.

Chapter 4: Forming Families — Parent-Child Relationships and Parentage

4.1 The Legal Significance of Parentage

Legal parenthood is not merely a biological fact — it is a legal status that carries profound consequences. A legal parent has an obligation to support the child financially, a right (and responsibility) to participate in the child’s upbringing, a claim to parenting time on relationship breakdown, and a place in the child’s legal identity. A biological progenitor who is not a legal parent has none of these rights or obligations automatically.

The law of parentage has been radically reshaped over the past three decades by three forces: the recognition of same-sex couples as parents, the emergence of assisted human reproduction (AHR) technologies, and evolving understandings of Indigenous kinship and adoption. The governing Ontario statute is the Children’s Law Reform Act (CLRA), which was substantially amended in 2016 to reflect these changes.

4.2 Establishing Parentage: The Traditional Presumptions

At common law and under early statutory frameworks, parentage was established through a set of rebuttable presumptions:

The birth mother presumption: The woman who gives birth to a child is the child’s mother. This remains a foundational rule.

The marital presumption (pater est): A child born to a married woman is presumed to be the child of her husband. This is now rebuttable by evidence to the contrary, including DNA testing.

Voluntary acknowledgement: A man who is not the birth mother’s husband can acknowledge paternity voluntarily, typically by signing a statutory declaration.

Judicial declaration: Either party can apply to court for a declaration of parentage or non-parentage. Courts may order DNA testing.

4.3 DNA Testing and Contested Parentage

The availability of DNA testing has transformed the law of parentage. DNA evidence can establish or exclude biological parentage with near-certainty (greater than 99.9% probability of inclusion; 100% certainty for exclusion).

Under the CLRA, courts can order a person to submit to a blood test or DNA test in parentage proceedings. Refusal to comply can result in adverse inferences — the court may draw the conclusion most unfavorable to the refusing party.

4.4 Assisted Human Reproduction and Multi-Parent Families

The Assisted Human Reproduction Act (federal, 2004) regulates the clinical and research aspects of AHR, but the parentage consequences of AHR are largely governed by provincial law. In Ontario, the 2016 amendments to the CLRA created a comprehensive framework:

Sperm and egg donors: A person who donates sperm or eggs under a written agreement that they will not be a parent is not a legal parent of any resulting child. The donor agreement must meet statutory requirements to be effective.

Surrogacy: Ontario law now recognizes surrogacy arrangements. A child born to a surrogate (gestational carrier) may have up to four legal parents, provided the intended parents and the surrogate enter a written surrogacy agreement before conception and obtain a court order (or, since 2017, a statutory declaration) of parentage. The surrogate is the birth mother but, with her consent, legal parentage is transferred to the intended parents.

Multiple legal parents (up to four): Ontario allows a child to have up to four legal parents simultaneously — an exceptional provision internationally. This recognizes the reality of diverse family formation (e.g., two same-sex partners and a known donor and their partner, all of whom intend to parent together).

Pre-conception parentage agreements: Under the amended CLRA, parties to an AHR arrangement can enter a pre-conception parentage agreement that, upon the child’s birth and compliance with statutory requirements, establishes parentage without a court order.

4.5 Adoption

Adoption is the legal process by which one or more persons become the legal parent(s) of a child who is not biologically their child (or, in the case of step-parent adoption, the child of their partner). Upon a final order of adoption, the adoptive parent(s) acquire all the rights and responsibilities of legal parenthood, and the child’s legal relationship with their birth parents (and their birth parents’ family) is severed, unless the adoption order provides otherwise.

In Ontario, adoption is governed by the Child, Youth and Family Services Act (CYFSA). The main types of adoption are:

Public adoption: A child who is a Crown ward (in permanent care of the state) may be placed for adoption. The Children’s Aid Society (CAS) manages the matching process.

Private adoption: An adoptive family is identified directly (often through a licensed adoption licensee) without CAS involvement. Biological parents consent to the placement.

Relative adoption: Adoption by a relative of the child (e.g., grandparent, aunt/uncle), often following informal care arrangements.

Step-parent adoption: A step-parent adopts their partner’s child, which severs the child’s legal relationship with the non-custodial biological parent (unless that parent is deceased).

Open adoption: An arrangement in which the birth parent(s) retain some form of ongoing contact or information-sharing with the child after adoption. Open adoption is not a separate legal category — the contact arrangement is typically embedded in the adoption order or a separate agreement.

Chapter 5: Separation, Divorce, and the Legal End of Marriage

5.1 Separation: The Beginning of the Legal Process

In Canada, separation occurs when spouses cease to cohabit with the intention of ending the marriage. No legal formality is required — separation is a factual state, not a legal act. There is no legal document called a “legal separation” in Canada (unlike some other jurisdictions).

Separation is significant for several reasons:

• It starts the clock on the one-year separation period required for a no-fault divorce
• It triggers property valuation dates under Ontario’s Family Law Act
• It is often the moment when parties begin negotiating separation agreements

Couples can separate while continuing to reside in the same home, provided they have genuinely ceased to live together as a couple (separate bedrooms, separate finances, no conjugal relationship). This is sometimes called “separated under one roof” and arises when neither party can afford to leave the matrimonial home.

5.2 Grounds for Divorce Under the Divorce Act

The Divorce Act provides a single ground for divorce: breakdown of the marriage (s. 8). Breakdown can be established in three ways:

1. Separation for one year (s. 8(2)(a)): The spouses have lived separate and apart for at least one year preceding the granting of the divorce. This is by far the most commonly used ground. The divorce proceedings can be commenced before the year is up; the one-year period must simply be completed before the divorce is granted. A brief reconciliation attempt (up to 90 days) does not restart the clock.

2. Adultery (s. 8(2)(b)(i)): One spouse has committed adultery. The adulterous spouse cannot use their own adultery as grounds. This ground is rarely used in practice because it requires proof of the adultery and is often more costly and contentious than simply waiting the year.

3. Physical or mental cruelty (s. 8(2)(b)(ii)): One spouse has treated the other with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. This ground also requires proof and is rarely invoked compared to separation.

Bars to Divorce

Even where grounds exist, a divorce may be denied if:

• Collusion (s. 11(1)(a)): The spouses have fabricated or suppressed evidence or entered into a corrupt scheme to obtain the divorce
• Connivance (s. 11(1)(b)): The petitioning spouse condoned or encouraged the adultery or cruelty relied upon
• Condonation (s. 11(1)(c)): The petitioning spouse forgave and resumed conjugal relations following the act complained of

These bars are rarely invoked in modern practice, particularly with the dominance of the one-year separation ground.

5.3 The No-Fault System and Its Social Context

The shift from fault-based to no-fault divorce — completed by the 1986 amendments to the Divorce Act — was one of the most significant social policy changes in 20th-century Canadian family law. Before 1968, divorce required proof of a matrimonial fault (adultery was the primary ground). The introduction of the three-year separation ground in 1968, and its reduction to one year in 1986, reflected a social consensus that the state had no legitimate interest in compelling people to remain in failed marriages.

The practical effects have been profound: divorce rates rose sharply after the 1968 reforms and again after 1986, as couples who had been unable or unwilling to meet the fault standard could now proceed on separation grounds. Critics argued this cheapened marriage; proponents argued it eliminated the indignity and perjury that pervaded the fault system and recognized individual autonomy in intimate life.

Chapter 6: Parenting After Separation — Custody, Parenting Plans, and Decision-Making

6.1 Terminology: From Custody to Parenting Responsibility

For most of the history of Canadian family law, post-separation parenting was organized around the concepts of custody (the right to have the child live with you and make decisions for them) and access (the right of the non-custodial parent to spend time with the child). These terms imported a proprietary framing — children as objects of a legal contest — that was widely criticized by child development researchers and family law scholars.

The 2021 amendments to the Divorce Act replaced these concepts for divorcing couples with new terminology:

• Decision-making responsibility (formerly “custody”): the authority to make significant decisions about the child’s welfare, education, health, and religion
• Parenting time (formerly “access”): the time a child spends in the care of each parent
• Contact orders: for persons other than parents (e.g., grandparents) who seek time with the child

The Children’s Law Reform Act (for non-married parents) has been similarly amended. The practical effect is largely terminological — the underlying legal analysis remains similar — but the terminology signals a shift toward viewing parenting as a shared responsibility rather than a custody “win.”

6.2 The Best Interests of the Child Principle

The central standard governing all parenting disputes is the best interests of the child. This principle is enshrined in both the Divorce Act (s. 16) and the Children’s Law Reform Act. It is, by design, a flexible and contextual standard — there is no algorithm for applying it.

The 2021 amendments to the Divorce Act set out a non-exhaustive list of factors courts must consider in assessing best interests (s. 16(3)):

1. The child’s needs, given the child’s age and stage of development
2. The nature and strength of the child’s relationship with each parent, siblings, and other significant persons
3. Each parent’s willingness to support the child’s relationship with the other parent
4. The history of care of the child
5. The child’s views and preferences, giving appropriate weight given the child’s age and maturity
6. The child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage
7. Plans proposed for the child’s care and upbringing
8. The ability and willingness of each parent to meet the child’s needs
9. The presence of any family violence and its impact on the child and the child’s relationships
10. Any civil or criminal proceeding, order, condition, or measure relevant to the child’s safety, security, or well-being

6.3 Types of Parenting Arrangements

Sole decision-making responsibility: One parent has exclusive authority to make major decisions for the child. This does not preclude the other parent from having substantial parenting time.

Shared decision-making responsibility: Both parents jointly make major decisions. This is increasingly common where parents can communicate adequately, and is often preferred by courts and parenting experts as a model that keeps both parents engaged.

Split arrangements: Where there are multiple children, different children live primarily with different parents. Courts are reluctant to separate siblings, but may do so where the needs of the children are sufficiently different.

Primary residence / secondary residence: Even under shared decision-making, one parent may be the “primary” parent with whom the child lives most of the time. The other parent has regular parenting time (formerly “access”).

Equal or near-equal parenting time: Some families implement “week on, week off” or other schedules providing roughly equal time with each parent.

6.4 Parenting Plans

A parenting plan is a written document that sets out the detailed arrangements for a child’s care after separation. Parenting plans can be incorporated into court orders (making them enforceable) or remain as private agreements (less easily enforced but still operative as expressions of the parties’ intentions).

A comprehensive parenting plan typically addresses:

• The regular residential schedule (where the child will be on which days)
• Holidays, school breaks, and special occasions
• Decision-making processes (how major decisions will be made, what counts as a major decision)
• Communication protocols between parents
• Travel and relocation provisions
• How disputes will be resolved

The Divorce Act (s. 16.1) now explicitly recognizes parenting plans and encourages parties to develop them collaboratively.

6.5 Case Study: Chomos v. Hamilton, 2016 ONSC

Chomos v. Hamilton (2016 ONSC) illustrates many of the themes of post-separation parenting in a high-conflict context. The case involved disputed parenting arrangements where one parent raised concerns about the other’s conduct and capacity. The court’s analysis applied the best interests factors, assessed the credibility of each parent’s allegations, and emphasized the harm of high-conflict litigation itself on the children.

Key principles illustrated by the case:

• Credibility assessments are central to parenting disputes; courts must carefully evaluate conflicting narratives
• Allegations of family violence and parental alienation must be investigated carefully, as false allegations harm children (by depriving them of a parent) and true allegations harm them (by exposing them to a dangerous parent)
• The court’s role is not to punish a “bad” parent but to determine what arrangement best serves the children
• Even where a parent’s conduct is problematic, maintaining some form of relationship with that parent may still be in the child’s interests

6.6 High-Conflict Families and Parental Alienation

High-conflict families — those in which parents maintain sustained, intense hostility following separation — present some of the most challenging cases in family law. Research consistently shows that children exposed to high-conflict parenting suffer worse outcomes across a range of psychological, social, and academic measures.

Parental alienation refers to a dynamic in which one parent systematically undermines the child’s relationship with the other parent, often by negative messaging, interference with parenting time, or coaching the child to reject the other parent. The concept is contested: critics argue it is frequently weaponized (often against mothers) to dismiss genuine safety concerns as “alienation”; proponents argue it describes a real phenomenon that seriously harms children.

Canadian courts have increasingly recognized alienating behaviour as a factor in best interests analysis. Where a parent is found to be systematically alienating the child from the other parent, courts may:

• Award primary residence to the alienated parent
• Impose supervised parenting time on the alienating parent
• Order therapeutic intervention
• In severe cases, make a “change of custody” order (now: change of primary residence) to address the alienation

6.7 Supervised Access and Supervised Parenting Time

Where there are concerns about a child’s safety during parenting time — due to domestic violence, mental health issues, substance abuse, or alienating behaviour — courts may order supervised parenting time. Supervision may be:

• Professional supervision: Parenting time takes place at a supervised access centre, staffed by trained workers who observe and document the interaction
• Community supervision: A trusted third party (family member, friend) is identified to supervise
• Therapeutic supervision: Supervision is integrated into a therapeutic program aimed at repairing or building the parent-child relationship

Supervised parenting time is intended as a temporary measure, with a goal of transitioning toward unsupervised time if and when it is safe to do so.

Chapter 7: Child Support

7.1 The Obligation to Support Children

Both legal parents of a child have an obligation to support that child financially. This obligation is not derived from the parents’ relationship with each other — it exists independently of whether the parents were ever married, cohabiting, or in any relationship at all. Under the Divorce Act (s. 15.1) for divorcing couples, and the Family Law Act (s. 31) for all others, the obligation runs to all children of whom a person is a legal parent.

The obligation does not automatically end at age 18. Under both the Divorce Act and the Family Law Act, support continues for children who are dependent — typically because they are pursuing post-secondary education, or because they have a disability that prevents economic independence.

7.2 The Federal Child Support Guidelines

The Federal Child Support Guidelines (SOR/97-175) came into force in 1997 and established a formulaic approach to calculating child support, replacing the discretionary and highly inconsistent case-by-case approach that had preceded them.

The Guidelines apply to all child support orders made under the Divorce Act and (by provincial regulation) under the Family Law Act in Ontario. The core principle: the amount of support is determined primarily by the income of the paying parent and the number of children requiring support, according to a Table amount set out in provincial tables within the Guidelines.

The Basic Framework

Step 1: Determine the paying parent’s annual income (Guidelines s. 16–20)

Step 2: Look up the applicable Table amount for that income and number of children (Guidelines Schedule I)

Step 3: Consider whether special or extraordinary expenses (s. 7 expenses) apply

Step 4: Assess whether any departures from the Table amount are warranted (e.g., undue hardship)

Income Determination

The Guidelines define income broadly. It is not limited to employment income on a T4; it includes self-employment income, rental income, investment income, and imputed income. Imputing income — attributing to a parent more income than they actually earn — is permitted where:

• A parent is intentionally underemployed or unemployed
• A parent is working below their capacity (e.g., a qualified professional working at a lower-paying job)
• A parent’s income is being concealed or diverted

Courts have broad discretion to impute income, and the burden is on the lower-earning parent to show their income is not understated.

Section 7 Special and Extraordinary Expenses

In addition to the Table amount (which covers ordinary day-to-day expenses), the Guidelines provide for s. 7 expenses — costs that are not included in the basic Table amount and that are shared between the parents in proportion to their incomes. Section 7 expenses include:

• Child care expenses required due to employment, illness, or education of a parent
• The portion of medical and dental premiums attributable to the child
• Health-related expenses exceeding insurance coverage (e.g., orthodontics, therapy)
• Post-secondary education expenses
• Extracurricular activities (where extraordinary given the family’s standard of living and the child’s interest and abilities)

7.3 Variation of Child Support

Child support orders are not permanent. Either parent can apply to vary a child support order where there has been a material change in circumstances — a change that, if known at the time of the original order, would have led to a different order. Material changes can include:

• A significant change in the paying parent’s income
• A change in the child’s residence or parenting arrangement
• A child reaching independence (or returning to dependency)
• A change in the child’s special needs

Annual review of child support based on current income is now considered best practice, and many orders include automatic review provisions.

Chapter 8: Spousal Support

8.1 The Purpose of Spousal Support

Spousal support — sometimes called alimony, though that term is rarely used in Canadian legal discourse — is financial support paid by one spouse to the other following separation or divorce. It is conceptually distinct from child support: child support compensates for the costs of raising children and is owed to the children; spousal support compensates for economic disadvantages or disparities arising from the marriage relationship and its breakdown.

The Divorce Act (s. 15.2) and the Family Law Act (s. 33) both provide for spousal support. The objectives of spousal support, as set out in the Divorce Act (s. 15.2(6)), are to:

1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown
2. 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 a child of the marriage
3. Relieve any economic hardship of the spouses arising from the breakdown of the marriage
4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time

8.2 Entitlement: The Threshold Question

Before calculating the amount and duration of spousal support, a court must determine whether the claimant is entitled to spousal support at all. This is a threshold question, and it is answered by reference to three legal foundations established in Moge v. Moge [1992] 3 SCR 813 and Bracklow v. Bracklow [1999] 1 SCR 420:

Compensatory basis: Spousal support compensates a spouse for economic disadvantages arising from the marriage — particularly from career sacrifices made to care for children or support the other spouse’s career. This is sometimes called the Moge rationale.

Non-compensatory basis: Spousal support relieves need arising from the breakdown of the marriage, even where that need cannot be traced to a specific sacrifice. Marriage creates mutual obligations of support; breakdown of a long marriage may leave one spouse economically vulnerable regardless of any causal connection to career sacrifice. This is the Bracklow rationale.

Contractual basis: The parties may have agreed to spousal support in a domestic contract (prenuptial agreement, cohabitation agreement, or separation agreement). That agreement is generally enforceable unless it meets the grounds for setting aside contracts under s. 56 of the Family Law Act.

8.3 The Spousal Support Advisory Guidelines (SSAG)

Unlike child support, there is no statutory formula for calculating spousal support. The Spousal Support Advisory Guidelines (Rogerson & Thompson, 2008, updated 2016) were developed by academic researchers and endorsed by the federal Department of Justice as a non-binding framework to promote consistency. The SSAG are advisory, not mandatory, but they are widely used by courts and practitioners.

The SSAG provide:

• Formulas for calculating the amount of support (expressed as a range: low, mid, high)
• Formulas for calculating the duration of support (also expressed as a range)
• Two formulas: the with child support formula (where child support is also being paid) and the without child support formula (for marriages without children, or after children are independent)

The key variables in the SSAG are the incomes of each spouse and the length of the marriage. Longer marriages generally produce higher and longer support obligations. The formula is roughly: support equals 1.5–2% of the difference in incomes per year of marriage (under the without child support formula), with a maximum of 50% of the income difference.

8.4 Variation of Spousal Support

Like child support, spousal support orders can be varied on proof of a material change in circumstances. However, the threshold for variation is generally understood to be higher for spousal support than for child support, because the parties are presumed to have structured their post-separation lives around the existing order.

Terminating events — remarriage, cohabitation, death, achievement of self-sufficiency — typically justify reduction or termination of spousal support. The death of the payor generally terminates the obligation unless the separation agreement provides otherwise.

Chapter 9: Division of Family Property

9.1 The Property Regime on Marriage Breakdown in Ontario

The Family Law Act Part I establishes Ontario’s system for dividing property when a marriage ends. The Ontario system is based on equalization of net family property (NFP) rather than direct division of assets. The goal is to ensure that each spouse shares equally in the economic gains made during the marriage, without necessarily dividing individual assets.

This is important: equalization does not mean that every asset is divided 50/50. It means that the increase in each spouse’s net worth during the marriage is calculated, and the spouse whose net worth grew more pays the other an equalization payment to bring the net gains to an equal level.

9.2 Calculating Net Family Property

NFP = (Value of all property owned on valuation date) − (Debts and liabilities on valuation date) − (Value of all property owned on date of marriage) − (Excluded property)

Step 1 — Valuation date: The valuation date is the earliest of: the date the spouses separate with no reasonable prospect of cohabitation; the date a divorce is granted; the date the marriage is declared a nullity; the date one spouse dies; or the date an application is made under certain provisions of the FLA. In most cases, this is the date of separation.

Step 2 — Deduct debts and liabilities: All debts owed on the valuation date are deducted.

Step 3 — Deduct property brought into the marriage: The value of property each spouse owned on the date of marriage (net of debts) is deducted, so that pre-marital wealth is not shared.

Step 4 — Deduct excluded property: Certain categories of property are excluded from the NFP calculation, meaning they are not shared, even if acquired during the marriage.

9.3 Excluded Property

The following categories of property are excluded from NFP under s. 4(2) of the Family Law Act:

• Property (other than a matrimonial home) that was a gift or inheritance from a third party during the marriage, provided it has been kept separate from other family property
• Damages or settlements for personal injury, pain and suffering, or loss of income
• Proceeds of life insurance policies on the life of a third party
• Property traced from excluded property (e.g., proceeds from selling an inherited asset, reinvested in another asset)
• Property excluded by a domestic contract (prenuptial or marriage contract)

9.4 Possessory Rights in the Matrimonial Home

Independent of the equalization calculation, both spouses have equal possessory rights in the matrimonial home during the marriage and until a court order or separation agreement provides otherwise. Neither spouse can unilaterally sell, mortgage, or transfer the matrimonial home without the other’s consent, regardless of whose name is on the title.

A spouse can apply for exclusive possession of the matrimonial home — the right to remain in the home while the other spouse must leave — even if the home is owned by the other spouse. Courts grant exclusive possession sparingly, typically where there has been violence or where the needs of the children require stability.

9.5 Unequal Division

While the default is equal sharing of net family property gains, the court may order unequal division where equal division would be “unconscionable” having regard to specific factors (s. 5(6) FLA). These include:

• A spouse’s failure to disclose debts or liabilities existing at the date of marriage
• Deliberate or reckless depletion of net family property
• A very short marriage
• Disproportionate debts incurred for the other spouse’s benefit

The threshold is high — “unconscionable” is a strong word — and courts do not depart from equality lightly.

Chapter 10: Family in the Shadow of the State — Child Protection

10.1 The Child Protection Framework

Child protection is the area of family law where the state most directly intervenes in the private sphere of the family. The governing statute in Ontario is the Child, Youth and Family Services Act (CYFSA), S.O. 2017, c. 14. The CYFSA replaced the former Child and Family Services Act and significantly updated Ontario’s child welfare framework, including with explicit recognition of Indigenous children’s rights.

The CYFSA operates through the Children’s Aid Societies (CAS), which are private non-profit organizations designated by the province to deliver child protection services in defined geographic areas. When a child is believed to be in need of protection, a CAS worker investigates and, where warranted, brings an application to the Ontario Court of Justice.

10.2 The Child in Need of Protection: Threshold Criteria

A child may be found to be “in need of protection” under s. 74(2) of the CYFSA on several grounds, including:

• Physical harm: The child has been or is at substantial risk of being physically harmed by the person having charge of the child
• Sexual harm: The child has been or is at substantial risk of being sexually molested or exploited
• Emotional harm: The child has suffered or is at risk of suffering emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive behaviour, or aggression
• Neglect: The child requires treatment for a physical or mental condition and the person having charge does not provide or refuses to allow treatment
• Abandonment or death of parent: The child has been abandoned, or the parent has died or is unavailable and has not made adequate provision for care

The threshold is not perfection of parenting — courts consistently hold that parents are entitled to make reasonable parenting choices without CAS intervention. The standard is substantial risk of harm, not theoretical or speculative risk.

10.3 The Proceedings and Orders Available

Once a CAS brings a protection application, the court has a range of orders available, from least to most intrusive:

1. Supervision order: The child remains in the care of the parent(s) but the CAS supervises the family and the parents must comply with specified conditions (e.g., substance abuse treatment, anger management, access to the home by workers).

2. Society wardship: The child is placed in the temporary care of the CAS, which acts as guardian. The goal is family reunification with supports. Society wardship may last up to 12 months (with extensions) before a court must determine the child’s permanent status.

3. Extended society care (formerly Crown wardship): The child becomes a permanent ward of the CAS, with the objective of adoption or another permanent plan. The parent’s right to custody is terminated (though access may be preserved). This is the most serious protection order.

4. Custody to a third party: The child is placed with a relative or other person, under the supervision of the CAS. This option is favoured over CAS care where a suitable family member is available.

10.4 The Best Interests Standard in Child Protection

Like parenting proceedings, child protection decisions are governed by the best interests of the child. However, the CYFSA adds a specific provision: in child protection proceedings, the paramount consideration is the child’s best interests, and the court must also consider the preservation of the child’s cultural identity and connection to their community (ss. 1, 9 CYFSA).

The CYFSA explicitly addresses the over-representation of Indigenous, Black, and other racialized children in the child welfare system, and requires that services be delivered in a culturally safe and appropriate manner.

10.5 Mandatory Reporting

A distinctive feature of child protection law is the mandatory reporting obligation under s. 125 CYFSA. Any person who has reasonable grounds to suspect that a child is or may be in need of protection must report the suspicion directly to a CAS. This duty applies to everyone — professionals and members of the public alike. Professionals (including social workers, teachers, healthcare providers, and lawyers) who fail to report where they have reasonable grounds to suspect a child needs protection are subject to a fine.

The duty to report is not displaced by professional confidentiality obligations. A social worker who learns in the course of their professional work that a child may be in need of protection must report, even if doing so requires disclosing information received in a confidential capacity (subject to limited exceptions).

Chapter 11: Parallel Processes — Family Law and Criminal Law

11.1 When Private Disputes Become Public

Family law and criminal law occupy the same territory in cases involving domestic violence, child abuse, and sexual assault within the family. A family that is before the civil family court for a parenting dispute may simultaneously have members involved in criminal proceedings — a charged abuser, a complainant seeking protection, children who are Crown witnesses.

These parallel processes create profound challenges for families and for professionals working with them. The criminal process is public and adversarial; the family law process is (in theory) more inquisitorial and private. The criminal process requires proof beyond a reasonable doubt; the family law process requires proof on a balance of probabilities. Evidence that is relevant in one process may be subject to different rules in the other.

Brownstone’s discussion (Ch. 10) of the intersection of criminal and family proceedings highlights cases where:

• A criminal no-contact order conflicts with a family court parenting order
• Allegations made in family court are used in criminal proceedings (or vice versa)
• Plea agreements in criminal proceedings create factual findings that influence family law outcomes

11.2 Domestic Violence and Family Law

The 2021 amendments to the Divorce Act introduced family violence as an explicit and significant factor in the best interests of the child analysis (s. 16(3)(j)). Courts must now consider the presence of any family violence and its impact on the child and on the child’s relationships with each parent.

Critically, the amended Act requires courts to consider the safety and wellbeing of parents affected by family violence — recognizing that a parent who is a victim of domestic violence may be less able to parent effectively if the perpetrating parent has continued access and influence. This was a significant reform, responding to concerns that the “maximum contact” principle was being used to force continued contact between abusive partners and their children.

Chapter 12: Knowledge Translation — Making the Law Accessible

12.1 The Imperative of Plain-Language Communication

One of the core competencies for SMF professionals in the family law context is the ability to translate complex legal material for people who are experiencing the legal system — often in conditions of high stress, limited resources, and limited prior knowledge of law.

This is sometimes called knowledge translation — the process of converting specialized expert knowledge (legal doctrine, case law, regulatory frameworks) into forms that are accessible and useful to non-specialists. Knowledge translation in family law is not just a communication skill; it is a social justice imperative. Access to justice in family law is profoundly unequal, and the ability to understand one’s legal rights and options is a prerequisite to exercising them.

12.2 Principles of Effective Legal Knowledge Translation

Accuracy: Simplified explanations must remain legally accurate. Oversimplification that misleads clients about their rights is potentially harmful and professionally problematic. Acknowledging the limits of one’s knowledge — and the need for legal advice — is part of accuracy.

Accessibility: Use plain language, avoid jargon, and use concrete examples. Translate legal terms the first time they appear (e.g., “equalization payment — the amount one spouse pays the other to balance out the difference in what each gained during the marriage”).

Contextual sensitivity: Recognize that people receiving legal information are usually experiencing significant emotional and practical stress. Timing, framing, and emotional pacing matter as much as accuracy.

Cultural competency: Legal concepts may translate differently across cultural contexts. The assumption that marriage is a civil contract with state-defined consequences may not be shared by clients from communities where marriage is primarily a religious or community institution.

Empowerment, not dependence: The goal of knowledge translation is to help clients make informed choices, not to make choices for them or to create dependence on the professional. Providing clear, accurate information about legal options — including ADR options, self-representation resources, and legal aid — is part of empowering clients.

12.3 The SMF Professional’s Role in the Family Justice System

The family justice system increasingly recognizes the value of non-lawyer professionals in roles that legal professionals cannot adequately fill:

• Parenting coordinators (typically mental health professionals with ADR training) who help high-conflict parents resolve parenting disputes
• Social workers who provide assessments to courts in child protection and parenting proceedings
• Family mediators who facilitate negotiation of separation agreements
• Child advocates and Office of the Children’s Lawyer (OCL) representatives who ensure children’s voices are heard in proceedings
• Domestic violence advocates who support victims through the parallel criminal and family processes
• Family dispute resolution practitioners designated under the Divorce Act (2021)

The 2021 amendments to the Divorce Act explicitly recognized the role of “family dispute resolution processes” and “family dispute resolution practitioners” (s. 2(1)), a category that extends beyond lawyers to include qualified mediators, arbitrators, and parenting coordinators. This represents a formal legislative acknowledgement that family law justice requires multidisciplinary expertise.

Chapter 13: Synthesis — Critical Perspectives on Family Law

13.1 Gender, Power, and Family Law

Family law has historically been shaped by, and has in turn shaped, gendered relations of power. The common law doctrine of coverture, which subsumed a married woman’s legal identity into her husband’s, was not fully abolished in Canada until well into the 20th century. The legal reforms of the 1970s and 1980s — equal treatment of spouses in marriage, no-fault divorce, property equalization — were fought for by feminist advocates and have substantially (though not completely) equalized formal legal rights.

Formal equality, however, does not produce substantive equality when the parties bring different economic and social positions to the legal table. Women continue to bear a disproportionate share of domestic labour and child-rearing during marriages. On breakdown, they are more likely to be the primary caregiver and more likely to face economic disadvantage. Spousal support law, in theory, compensates for this disadvantage — but the compensatory rationale is limited by the “self-sufficiency” objective, which may underestimate the difficulty of achieving economic independence after years of reduced workforce participation.

The rise of shared parenting — equal time arrangements — has been welcomed by fathers’ rights advocates as correcting judicial bias toward mothers. Critics argue that equal time arrangements can be harmful where there is domestic violence, and that the shift to shared parenting has occurred without a corresponding shift in the distribution of domestic labour during intact relationships.

13.2 Class, Poverty, and Access to Justice

Family law is, at its core, a middle-class subject. The elaborate frameworks of equalization, spousal support, and private family dispute resolution assume parties with significant property, incomes, and resources to fund legal processes. For families living in poverty — disproportionately racialized and single-parent families — these frameworks are largely irrelevant; the pressing family law issues are child protection, social assistance, and housing.

Legal aid in Ontario provides some access to legal representation for low-income people in urgent family law matters (particularly child protection and domestic violence). But civil family law — property division, spousal support for lower-income couples — is largely outside the legal aid certificate system. The result is that a substantial portion of family court litigants are self-represented, navigating a system designed for lawyers.

13.3 Brownstone’s Ten Tips: A Judge’s Practical Wisdom

Brownstone’s Chapter 13 (“Ten Tips for Success”) distils practical advice for people navigating family court. While written for litigants, these tips have direct relevance for SMF professionals advising and supporting families:

1. Focus on the children’s needs, not your own grievances
2. Be reasonable — unreasonable positions typically backfire
3. Do not use children as messengers or confidants
4. Keep children out of conflict — protect them from adult disputes
5. Cooperate with court-ordered assessors and evaluators
6. Be honest — courts value credibility above all
7. Document parenting and financial issues contemporaneously
8. Consider mediation and other ADR options before litigating
9. Understand that courts cannot solve emotional problems
10. Get appropriate professional help — legal, financial, and therapeutic

These tips reflect the accumulated wisdom of a judge who has observed thousands of families attempt to resolve disputes in the worst context imaginable. They are, in substance, a prescription for the kind of collaborative, child-centred, multi-professional approach that SMF programs are designed to produce.

13.4 The Future of Family Law

Canadian family law continues to evolve in response to changing social realities:

• Increasing diversity of family forms: The law is gradually adapting to recognize polyamorous families, multi-parent families, and families formed through complex AHR arrangements
• Technology and family law: Electronic surveillance, social media evidence, and cryptocurrency assets present new challenges for property disclosure and parenting disputes
• Indigenous legal orders: The reconciliation process demands that Canadian family law engage seriously with Indigenous legal orders governing family formation, kinship, and child welfare
• Climate and economic precarity: Economic instability and housing crises reshape the demographics of family breakdown and the practical consequences of legal outcomes
• Trauma-informed practice: Growing recognition that family court proceedings are themselves traumatic, and that the system must be redesigned with trauma-informed principles

For SMF professionals, the trajectory of these changes reinforces the importance of ongoing learning and adaptability. Family law is not a static body of rules to be memorized; it is a living system of norms in ongoing negotiation with a changing society.

Appendix: Key Statutes and Their Provisions