Divorces in Ontario are governed by the federal Divorce Act.  An Ontario court has jurisdiction where either spouse has been ordinarily resident in the province for at least one year immediately before starting the proceeding.  The residency requirement is a question of fact.  The court considers such factors as whether the spouse resided in the province as a customary mode of life as opposed to merely casually or occasionally, and whether the spouse had the intention of making a home in that province for an indefinite period.  This is not dependent on citizenship, domicile or immigration status.  The other spouse may argue that another jurisdiction presents a more convenient forum.

Property division is not dependent on a divorce application although it may be included in a divorce application. Property division is governed by the Ontario statute, the Family Law Act. The scheme under the act provides that when a marriage ends, whether by separation or death, a spouse may seek an equalization from the other equalizing the growth in value of their respective net worths accrued during the marriage.

A divorce proceeding commenced in Canada can be stayed where a court determines that the foreign jurisdiction is the more convenient forum.  Some of the factors a court will consider in making this determination include:

• the location of the parties;
• the location of the key witnesses and evidence;
• the avoidance of a multiplicity of proceedings;
• contractual provisions that specify applicable law or accord jurisdiction;
• the application law and its weight in comparison to the factual questions to be decided in the case;
• geographical factors suggesting the natural forum; and
• whether declining jurisdiction will deprive the spouse who commenced the proceeding in Canada of a legitimate juridical advantage available in the domestic court

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A court will grant a divorce if: a) the spouses have lived separate and apart for a period of not less than one year immediately before the divorce is granted, b) a spouse committed adultery, or c) a spouse has been mentally or physically cruel to render continued cohabitation intolerable.

An application for divorce must be served on the respondent personally.

A foreign marriage will generally be recognised if the marriage was legal according to the rules where the wedding took place, and complies with Canadian laws. Documentation, in particular a marriage certificate, is important to prove the marriage. Absent documentary proof of marriage, obtaining a divorce will require the spouse to prove the marriage. This can be accomplished by demonstrating that 1) the marriage was solemnized in good faith, 2) the parties intended the ceremony to comply with the law of Ontario,  3) neither party was under a legal disqualification to marry, and 4) the parties cohabited as a married spouses after the marriage was solemnized.

A foreign divorce will be recognised as long as the divorce is valid in the other country and one or both of the spouses were ordinarily resident in that country for at least a year preceding the divorce application. If a spouse intends to remarry in Ontario, a legal opinion will need to be obtained from an Ontario lawyer and a jointly signed statement of sole responsibility will need to be signed by the intended spouses to confirm that foreign divorce should be recognized.

Same sex spouses have the same rights as anyone else to marry in Ontario and Canada. Same sex marriages that have taken place outside of Canada will be recognised if the marriage conformed with the legal requirements of the place where the marriage took place.

The courts can make orders for child support, spousal support and property division.

Courts order an equalization payment to equalize the growth in value of the spouses’ wealth accrued during the marriage. The marital value of a spouse’s pension is included in the calculation.

Courts routinely make interim orders for parenting and financial relief, including legal costs, before trial.

Ontario courts do not have jurisdiction to hear and determine spousal support claims after a valid divorce in another jurisdiction. Onatrio courts may have jurisdiction to determine claims under the Family Law Act for child support and family property claims.

Support orders made in a reciprocating jurisdiction outside of Canada must be registered for enforcement in an Ontario court. This is a process on notice to the support payor. The support payor has the opportunity to ask the court not to register the order for enforcement.

Orders for other financial remedies are enforceable in Ontario. The party seeking to enforce a foreign judgment will need to bring an application for enforcement. The court in Ontario will recognize a foreign judgment if a) there was a real and substantial connection between the granting jurisdiction and the subject matter of the proceeding, b) the judgment was for a certain sum, c) it is a final order, and 4) the enforcement proceeding was started within the applicable limitation period.

In Ontario, parties may enter Domestic Contracts under the Family Law Act which dispose of their support and property rights. This can be done before, during and after a marriage. These contracts can modify or oust entirely the property equalization regime in Ontario in favour of some other scheme.

In Ontario, parties may enter Domestic Contracts under the Family Law Act, before, during, or after marriage. These are akin to pre-nuptial agreements and post-nuptial agreements. These agreement must be signed by both parties and witnessed. The parties must have had capacity to contract and generally must have understood the deal they were making. If an agreement was concluded in a jurisdiction other than Ontario, the same formalities must be met for the contract to be enforceable in Ontario.

A parent may claim child support on behalf their child following separation where that parent is the child’s primary caregiver or there is a shared parenting arrangement.

Child support is determined under the Child Support Guidelines, which calculate monthly child support based on the parenting arrangements, income and the number of children.  In addition, a parent may seek contribution to special or extraordinary expenses including childcare, private school or university expenses.

Where the payor spouse earns over $150,000 per year, the court has discretion to order an amount of support that differs from the Guidelines after considering the condition, means, needs and circumstances of the parties and the children.

Parents must pay child support as long as the child is a dependent, even if over the age of majority, if that child is unable to withdraw from parental control because of illness, disability or education.

In some situations, such as in high income cases, if the payor can demonstrate that it would be inappropriate to apply the amounts under the Guidelines, then the court may make different orders having regard to the parties’ and children’s financial circumstances. The court may take into consideration capital sums paid to children by a parent. In some cases, such as where a parent payor has evaded the court proceeding, the court may make orders vesting assets of the payor in the support recipient parent on behalf of the child(ren) entitled to receive child support.

In Ontario, there is no formal partnership status such as a civil partnership. Cohabitants have rights to support and may make equitable claims for relief in relation to property but do not have the right to equalization, which is available only to married spouses.

Unmarried spouses have spousal support rights if they have cohabited for at least three years.  They may make common law property claims or equitable claims for unjust enrichment, other restitutionary claims or resulting trust claims

All parents, married or unmarried, may make claims for parenting orders respecting decision making authority and parenting time with a child.

All parents, married or unmarried, may make claims for parenting orders respecting decision making authority and parenting time with a child. Even non-parents may ask the court to make contact with a child, if the person can demonstrate that such contact would be in a child’s best interest.

A court can make parenting orders.  Contact orders address the time a parent is scheduled to be with a child and the right to make inquiries and be given information concerning the child’s health, education and welfare.  Decision-making orders address the right to make major decisions for a child in relation to health, education, and welfare.  A court can either grant sole or joint decision-making.  A court can also make orders about the physical residency of a child.  This physical residency can either be granted primarily to one parent, or can involve a sharing of time between parents.

Parents are free to reach their own agreement about the parenting arrangements following separation and this agreement will be respected by the court so long as it accords with the best interests of the child.

The primary consideration when making a decision in relation to children is the best interests of the children in the circumstances.  In Ontario, a court will consider the love, affection and emotional ties between the child and the parties, the child’s views and preferences, and the ability and willingness of the parties to meet the needs of the child.  A court will also consider the willingness of a parent to facilitate contact between the child and another parent.

In a parenting dispute, the child has the right to be heard. Voice of the child reports are routinely used, which are less intrusive than parenting assessments. The weight given to a child’s views and preferences will depend on the age and maturity of the child, and the independence of their views.

A parent with decision-making authority may move a child to another jurisdiction if the other parent does not object. If the other parent has been provided notice and objects to the move, the moving parent will require a court order.

In determining an application to relocate with a child by a parent that has decision making authority, the court must consider the child’s best interest, considering the following:

• the impact of the relocation on the child;
• the amount of time spent by each parent with the child and level of involvement in the child’s life;
• provision of notice of the relocation;
• existence of a court order, arbitral award or agreement with respect to the child’s place of residence; and
• reasonableness of the proposal for parenting time following the move and compliance with existing obligations under a court order, arbitral award or agreement.

The courts in Ontario routinely recognize foreign parenting orders for enforcement. The legislation in Ontario provides that the courts shall recognize extra-provincial orders unless:

1. The respondent was not given reasonable notice,
2. The respondent was not given an opportunity to be heard,
3. The law of the place where the order was made did not require a best interest of the child analysis,
4. The foreign order is contrary to Ontario public policy, and
5. The foreign tribunal would not have had jurisdiction if it were a court in Ontario, which means that:

1. The child had to be habitually resident in the jurisdiction at the start of the application; and
2. If the child was not habitually resident then, the child was physically in the jurisdiction at the start of the application, the substantial evidence about the child’s best interest was available, no competing application had been pending in another jurisdiction where the child is habitually resident, no order from another jurisdiction had been recognized, the child had a real and substantial connection to the jurisdiction, and on balance, it is appropriate for the jurisdiction to be exercised by the court.

Surrogacy agreements are legal in Ontario and Canada. It is not legal to pay a surrogate for her services.  However, surrogates may be reimbursed for expenses incurred during the process.

In Ontario, parties to a dispute can take advantage of various alternative dispute resolution processes including, mediation, mediation/arbitration, and arbitration.

Mediators facilitate a negotiated resolution between disputants. In some cases, if asked, the mediator will provide neutral evaluation on the issues in dispute.

Arbitration acts as a judge and renders a binding decision following a hearing of the dispute submitted for adjudication.

Mediation/arbitration is a process where the parties agree under contract that if the parties cannot resolve their dispute in mediation, the mediator will call the mediation at an end, switch hats, and act as arbitrator to determine the legal issue in dispute.