Family Law 2024 Comparisons

The most common ground for divorce is a separation that lasts for a period of 12 months with no prospect of reconciliation. Canada still has two “fault” grounds (cruelty and adultery) but they are rarely ‒ if ever ‒ used. The same grounds apply to same-sex spouses.

A divorce may be granted by the court after the parties have lived separately and apart with no reasonable prospect of reconciliation for a period of no less than 12 months. The 12-month period starts on the date of separation, which is a finding of fact. There is no requirement that the parties obtain a court order or court finding of the date of separation, although in some cases a finding may be required if the parties cannot agree on the date of separation.

Consent is not required to apply for a divorce. One or both parties can apply to the court for a divorce. The unwinding of the parties’ financial affairs and any child-related issues are corollary relief to the application for divorce. Service is personal on the responding party even if the divorce is uncontested.

Canadian courts deal only with the severing of the legal marriage and the corollary issues of separation and divorce. Ontario courts may remove a religious barrier to marriage if certain criteria are met.

Annulment

Annulment is available in Canada in limited circumstances related to a defect in the formality of the marriage. In practice, it is rare. An annulment can be ordered if a marriage lacks the formal validity requirements, such as proper registration for the marriage. An annulment can also be ordered if a marriage lacks essential validity requirements. For example, a marriage wherein one party did not understand the nature of the duties or responsibilities that flowed from a contract may be annulled on that basis.

A spouse may only obtain a divorce in Canada if they, as the moving party, have lived in the jurisdiction for a period of no less than 12 months. The divorce is the severing of the legal marriage only. There are four primary areas of corollary relief that have different jurisdiction requirements, as follows.

• Division of property – only married parties are able to make claims for statutory division of property. The court will take jurisdiction over division of property if the jurisdiction is the last common habitual residence of the parties as married spouses. Unmarried parties have equitable claims available to them that also require them to be habitually resident in the jurisdiction in order to make a claim to the courts.
• Children’s issues – jurisdiction lies with the court where the child habitually resides at the time the application is commenced. In some circumstances, there may be concurrent jurisdiction; in which case, the court will consider the question of preferred forum in determining the appropriate jurisdiction.
• Child support ‒ a parent can move for child support in the province where the child habitually resides, regardless of whether that jurisdiction was ever a common habitual residence for the parents.
• Spousal support ‒ a spouse (married or common law) may move for spousal support in the jurisdiction where the spouses last shared a common habitual residence. There is some ambiguity about whether provinces will assume jurisdiction for spousal support claims if the parties did not commonly reside in the jurisdiction prior to the commencement of the application.

In cases where both spouses reside in a foreign jurisdiction for at least one year prior to the time of the divorce application, and that jurisdiction does not recognise the validity of their marriage, the court in the province where the spouses were married may grant a divorce in accordance with Section 4-13 of the Civil Marriage Act. However, given that the Divorce Act does not apply in circumstances where a Canadian court grants a divorce for foreign spouses, the court does not have jurisdiction to adjudicate any support or custody claims.

Any person may make a claim for a divorce and/or corollary relief regardless of their nationality and/or religion. Where the parties reside (ie, their domicile) impacts where they are able to commence a court application.

Contesting Jurisdiction and Staying Proceedings

A party can contest jurisdiction based on the following factors:

• the commencement of a concurrent and/or earlier proceeding in another jurisdiction;
• the absence of habitual residence in the case of divorce and division of property;
• whether the parties have previously contracted into another jurisdiction and/or private dispute resolution (arbitration); and/or
• where there is a child under the Divorce Act, there is an opposed parenting/decision-making application and the child is “most substantially connected” to another jurisdiction.

The court may decline jurisdiction and/or stay the Canadian proceeding if a foreign jurisdiction has already taken jurisdiction. In declining or staying the Canadian proceeding, the court will consider whether the foreign court has jurisdiction over the proceeding. A province will have jurisdiction over a divorce if either spouse has been habitually resident in the province for at least one year immediately prior to the commencement of the divorce proceeding.

If a party wants to pursue divorce in a foreign jurisdiction, they must demonstrate that the foreign jurisdiction is the more convenient forum. Among the factors that a court will look to in determining if a foreign jurisdiction is more convenient are the geographical location of the parties and/or whether one spouse would be deprived of a juridical advantage in the foreign jurisdiction.

As regards the grounds for jurisdiction and the possibility of contesting jurisdiction and/or staying proceedings in financial proceedings, please refer to 1.2 Choice of Jurisdiction.

Pursuant to the Federal Divorce Act, Canadian courts do not have jurisdiction to hear and determine a corollary relief proceeding following a valid foreign divorce. Provincial courts may have jurisdiction to determine child support and property claims that have not been dealt with in the foreign proceeding.

Financial claims are commenced under provincial jurisdiction, most commonly by way of application to the relevant provincial Superior Court of Justice. Most financial claims are corollary to the divorce proceeding and, as such, service is personal or admitted through counsel in the case that the party has representation.

There are no statutory timelines for parties dealing with financial proceedings. Regardless of whether the matter is negotiated or litigated, all cases start with the exchange of financial disclosure – a process that almost always informs the pace of the negotiation and/or the litigation. The case law requires the asset-holding party to provide a value and supporting documentation for the asset(s) in question. The form and extent of disclosure depends on the nature and complexity of the assets. In some cases, particularly in high net worth matters, one or both parties may need to obtain the assistance of an arm’s length expert to provide an opinion of value with regard to various assets ‒ a process that can be time consuming and expensive.

Division of property is governed by provincial legislation and is individual to each province. Generally speaking, the statutory right to division of assets (which is available only to married couples) is intended to provide an equal division of the value of all assets acquired during the course of the marriage, not a redistribution of title and/or ownership.

The question of value is a determination based on fact, rather than statutory definition. Value is calculated on a net basis, which can include actual liabilities and/or disposition costs and potential notional disposition costs or discounts. An example of this is when a minority discount is applied (in some circumstances) when a shareholder is in a non-control, minority position in the corporation and the value of their interest should be discounted based on liquidity and/or ability to dispose of the interest.

Financial Orders

In all Canadian provinces, the statutory scheme focuses on title, meaning that marriage does not create an ownership interest in the other spouse’s assets (equitable or otherwise) and only in the case of equitable relief can a spouse obtain an equitable ownership interest in an asset. In some extreme cases, a party may obtain relief to have an asset transferred to them or to compel the sale of an asset to satisfy a payment – although this is the exception, not the rule.

The courts have jurisdiction in exceptional cases to transfer assets from one spouse to the other either:

• in order to secure a present or future support obligation (security for support); or
• as a remedy for oppressive conduct in cases where a spouse is also a shareholder to a corporation.

As in non-matrimonial cases, in exceptional circumstances the court can also seize and/or freeze assets to protect against depletion and potentially to enforce an outstanding order.

Disclosure Process

Canadian courts have described the failure to provide proper disclosure as the “cancer of matrimonial litigation”. Canadian jurisprudence dealing with the positive duty of a spouse to provide full and frank disclosure is robust and far-reaching. If a party resists disclosure that is relevant and ought to be produced, the court can restrict the party’s ability to participate in the proceeding and make orders in their absence, impose monetary and/or non-monetary penalties until compliance, and – in extreme cases ‒ make a finding of contempt.

An asset-holding party has the positive obligation to disclose all worldwide assets and provide a value for the disclosed assets. In the case of complex assets, this may include an obligation to provide an expert opinion on the question of value. Once disclosure (including the value) is provided, it is open to the responding spouse to request further disclosure and/or obtain their own expert opinion with regard to the value.

Sometimes the required information to value a spouse’s asset (or interest in an asset) requires production from third parties. The burden on who moves against the third party depends on the nature of the requested disclosure.

If an asset-holding party is not able to obtain the required supporting documentation to value the asset, they may have an obligation to obtain a court order requiring third parties to release the necessary information to determine value. An example of this would be if the asset holder is a minority shareholder in a privately held corporation and does not have a right of access to the working papers of the corporation. In this case, the spouse would have a positive obligation to move before the court as against the corporation to obtain the disclosure.

If a responding spouse is not satisfied with the disclosure provided and wishes to pursue further or other disclosure, they are also free to ask the court to compel the asset-holding spouse (or third parties) to produce additional information.

Trusts

A spouse’s interest in a trust may be an asset that is valued and then equalised by the courts. Determining value of an interest in a trust is a fact-finding exercise. The court will examine the following questions.

• What position does the spouse have in relation to the trust? Are they the settlor, a trustee or a beneficiary?
• If the spouse is a trustee, do they have the power to remove other trustees at their discretion?
• Is the spouse a trustee and a beneficiary?
• If the spouse or a related entity owned by the spouse is a beneficiary, have there been distributions to beneficiaries over the lifespan of the trust?
• How did the spouse obtain their interest in the trust? In many jurisdictions in Canada, if the spouse obtained their interest by way of gift or inheritance, it may be excluded from the calculation of their net family property ‒ regardless of the nature of their interest.

Equitable trusts arising from unjust enrichment are remedies available both as a matter of common law and, in some jurisdictions, by statute. In addition to the traditional equitable remedies of resulting and constructive trust, the Supreme Court of Canada has expanded the reach of equitable claims and created a common law finding of Joint Family Venture (JFV). A JFV finding allows the court to expand the reach of traditional trust remedies when the nature and dynamic of the spouse’s contribution is not specifically tied to an identified asset. A finding of JFV requires the parties to have engaged in a joint economic enterprise. The determination involves many of the traditional considerations for a constructive trust remedy but, again, relieves the trier of fact of the obligation to attach those contributions to a specific asset. This has been an important development for non-married spouses.

Generally, trust claims (including a JFV finding) are available only to non-married spouses. However, the case law has not closed off certain circumstances whereby a married spouse may also have a trust claim, including a JFV.

Canada has a robust and well-developed body of jurisprudence related to spousal support. In addition to extensive case law, the courts rely on the Spousal Support Advisory Guidelines (SSAGs), which is a set of rules and guidelines for how to fashion an appropriate support order.

Spousal support is available to spouses on an interim and final basis. On an interim basis the court is not required to determine a precise amount and will, in most circumstances, fashion an interim order that is intended as a holding pattern until final resolution. The court also has jurisdiction to order partial lump or uncharacterised advances on an interim basis.

Grounds for Spousal Support

Entitlement to spousal support is based on compensatory and non-compensatory grounds.

Compensatory support is payable when a spouse has made direct or indirect contributions to the marriage and/or the economic success of the other spouse and suffered an economic loss as a result of those contributions. A spouse will have a strong compensatory claim if they have sacrificed a job or career trajectory for the family, most commonly for childcare or the advancement of the other spouse’s career. Strong compensatory claims also exist in traditional marriages where one spouse works outside the home and the non-income-earning spouse works inside the home.

Non-compensatory support is payable when a spouse has suffered economic disadvantage arising from the marriage breakdown. This most commonly occurs in shorter-term marriages where a lower-income-earning spouse will suffer economic loss or hardship arising from the physical separation. By way of example, the lower-income-earning spouse may experience job disruption or relocation costs arising from the marriage breakdown.

Most spousal support claims have blended entitlement, meaning they are a combination of compensatory and non-compensatory support.

Determination of Duration and Quantum of Support

The nature of a compensatory claim can inform both the duration and quantum of support. The stronger the compensatory claim, the more likely that duration will be longer and the amount will be higher.

The court can order spousal support on a monthly or lump sum basis. Although lump sum spousal support is exceptional, it may be appropriate in cases where income is uncertain and/or a lump sum more appropriately compensates a recipient spouse. Lump sum spousal support may also be appropriate if there are concerns about the payor’s ability to service monthly support in a reliable way. If spousal support is ordered on a monthly (sometimes called “periodic”) basis, the payments can be ordered with or without a termination date or with a structured review.

Aside from the nature of the compensatory claim, the quantum of spousal support is determined based on:

• the ages of the parties at the time of separation;
• the length of the marriage;
• the parties’ respective incomes (actual or imputed);
• the means, needs and circumstances of the parties ‒ this basket consideration may include the capital base of either party, other financial obligations, and the budget of recipient spouse.

Duration of support is largely governed by the length of the marriage and the ages of the parties at the time of separation. Generally, a support obligation will not be less in duration than the length of the relationship. Importantly, duration for spousal support is determined by the length of the relationship, which can include cohabitation prior to the date of marriage if the parties are married.

Cohabitation does not require physical residence. There are cases in Canada where a party has established a sufficient level of economic integration and dependency during the course of a relationship for a support obligation to be imposed even though the parties did not physically live together during the relationship.

Domestic contracts can be entered into between married and unmarried spouses alike. In most provinces and territories, the validity and enforceability of domestic contracts are governed by both statute and case law. Domestic contracts can take the following forms.

• Cohabitation agreements ‒ entered into between unmarried parties most commonly to restrict or modify spousal support entitlements and/or restrict equitable claims related to property. Cohabitation agreements can become marriage contracts in the event of marriage if the parties contract as such.
• Marriage contracts ‒ entered into either during or in contemplation of marriage. Marriage contracts most commonly restrict or modify a married spouse’s right to the statutory framework for equalisation of property between spouses and/or restrict or modify spousal support entitlements.
• Separation agreements ‒ entered into between married and unmarried spouses to resolve the issues arising from the breakdown of their marriage or relationship.

Generally, courts will enforce valid and enforceable domestic contracts that do not give rise to unconscionable circumstances.

Validity of Domestic Contracts

Validity is governed primarily by statute in the relevant province. Validity is concerned primarily with the formal requirements of establishing the existence of the contract. In Ontario, for example, validity requires that the domestic contract be in writing, signed by both parties, witnessed, and dated.

Enforceability of Domestic Contracts

Enforceability, by contrast, concerns itself with whether the circumstances of entering into the contract were appropriate and with the fairness of the contract. The threshold requirements for the enforceability of all domestic contracts are threefold, as follows.

Duress

Duress is addressed extensively in the case law. Broadly understood, duress will be found when a spouse felt ‒ at the time of execution or in the time leading up to the execution ‒ that they had no choice but to enter into the contract and that the duress was impressed on them by the acts or words of the other contracting spouse. External stress, discomfort or stressful circumstances do not rise to the level of duress necessary to set aside a domestic contract that was otherwise validly entered into.

Financial disclosure

The complete absence of disclosure leading up to the execution of a domestic contract is almost always a basis for setting aside a domestic contract. More often, however, there is a question about the sufficiency of the disclosure provided. A material misrepresentation or omission, whether intentional or inadvertent, will likely be considered a basis for setting aside an agreement. For a misrepresentation or omission to be material, it must directly connect to the substantive content of the contract and will depend on the facts of the case.

Independent legal advice

The absence of independent legal advice does not automatically result in a contract being unenforceable, but the presence of independent legal advice is a powerful indicator that the contract should be enforced. A certificate confirming independent legal advice was given is commonly attached as a schedule to domestic contracts to confirm the nature and extent of the legal advice given. The presence of independent legal advice leading up to and during the execution of the agreement is often, but not always, a mitigating factor against a duress allegation. Independent legal advice may not be sufficient if there was an absence of full financial disclosure. Put another way, the presence of independent legal advice may be useless if the lawyer did not have appropriate disclosure in order to administer the appropriate advice.

Unconscionable Circumstances

In addition to the above-mentioned criteria, the court has jurisdiction to set aside all or part of a domestic contract if the contract results in an unconscionable circumstances. The lead case in respect of this analysis comes from the Supreme Court of Canada in Miglin v Miglin (2003).

One example of unconscionable circumstances would be if the parties entered into a domestic contract containing a full spousal support release and then were subsequently married for 45 years in a traditional marriage. In this case, the court may set aside the spousal support release because the outcome of the contract is inconsistent with the terms and entitlement that the spouse would have otherwise received without the contract. Given the severity of the circumstances in this case, a court would likely set the spousal support release aside because its results would be unconscionable and/or inconsistent with the intentions of the parties at the time that the contract was signed.

In Ontario, Alberta, New Brunswick, Nova Scotia, and Quebec, unmarried spouses have no automatic right nor statutory right to share in their partner’s property unless they hold legal title to the property. In these jurisdictions, unmarried spouses’ property rights are limited to common law rights and equitable claims (ie, claims that anyone may advance). The Supreme Court of Canada in Walsh v Bona (2002) confirmed that the different treatment of married and unmarried spouses when it came to property rights arising from their relationships was not discriminatory under the Canadian Charter of Rights and Freedoms. Conversely, in British Columbia, Saskatchewan, and Manitoba, unmarried couples who are living together in a conjugal relationship have statutory property rights and are entitled to equally share in property acquired during their relationship.

The contributions of the spouse to the home (including contributions to childcare) and the length of the relationship are factors that the court will considering when assessing both the finding of unjust enrichment and in fashioning a monetary or non-monetary remedy.

Enforcement falls under provincial jurisdiction and varies from province to province. A spouse has a combination of institutional enforcement and enforcement through the courts.

An example of institutional enforcement can be found in the province of Ontario. There, the Family Responsibility Office enforces support obligations using tools such as garnishment, seizing of driver’s licence and/or passports, and ‒ in some cases ‒ incarceration.

Court-ordered enforcement can include penalties for non-compliance, contempt findings, and writs of seizure and sale. A party that fails to comply with a financial order may also be responsible for the moving party’s costs.

Enforcement of International Orders

Enforcement of international orders is governed either by treaty or common law. All provinces and territories except Quebec have reciprocal support arrangements with some countries and territories, such as the USA. However, Quebec has arrangements with a number of states, including California, Maine and Florida. Canada also has reciprocal support arrangements with Africa, Asia, Caribbean, Europe and the South Pacific.

For instance, Canada is a signatory to the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (the “2007 Hague Convention”). The 2007 Hague Convention is an international system for the cross-border recovery of child support and other forms of family maintenance. Some provinces, including Ontario and Manitoba, have implemented the 2007 Hague Convention into a provincial act that provides the applicable procedures to enforce foreign child support orders. For the Ontario legislation, see Chapter 13 of the Interjurisdictional Support Orders Act 2002.

Canada enjoys freedom of expression protected by the Canadian Charter of Rights and Freedoms. This includes freedom of the press. In addition to freedom of expression, the Canadian Charter of Rights and Freedoms protects court openness as a procedural and substantive protection. In the absence of a sealing order, there is no restriction on the media’s ability to access court proceedings and report on the proceeding.

Canadian court proceedings are rarely televised except at the appellate level as a matter of custom. However, there is no constitutional prohibition.

Anonymising of proceedings is required by statute in child protection proceedings. Anonymisation is available by way of application in domestic child-related proceedings based on both statute and common law and, rarely, may be ordered in financial proceedings based on common law.

Parties are permitted by way of agreement to resolve their financial dispute outside of the court system. Parties must enter into a contract specifically agreeing to the form of dispute resolution and the terms of the process. In some provinces, there are statutory requirements to screen for domestic violence and to apply the law of the province in the private ADR process. Parties may contract into mediation only, mediation with focused arbitration on specific issues, or full arbitration on all issues.

There are no universal statutory obligations for parties to explore ADR methods. However, the case law in most provinces speaks to the positive obligation of parties to divert their dispute from the litigation process and attempt ADR in advance of litigation. That being said, many cases are not appropriate for ADR and counsel must consider the appropriate screening requirements before referring matters to private dispute resolution.

In the case of a settlement reached through negotiation and memorialised in a final agreement, the courts will generally enforce the agreement in the absence of a material defect. In cases where the parties properly enter into an arbitral process and a decision is made by the arbitrator, the court will treat such an award as valid and enforceable, provided that the award has not been successfully appealed, varied or set aside.

As regards the grounds for jurisdiction and the possibility of contesting jurisdiction and/or staying proceedings in  domestic child-related proceedings, please refer to 2.1 Choice of Jurisdiction.

Living/Contact Arrangements

In Canada, children have the right to have contact with their parents. As a result, either parent can apply to the court to request that a parenting schedule be ordered. This can be done as part of a divorce application, an application that considers support issues, or as a standalone application. Several factors must be considered when determining what the appropriate parenting schedule should be, but the court’s primary consideration is always what is in the best interests of that child.

Following the breakdown of a relationship or a marriage, the legal approach to determining questions of custody and parental responsibility is one that focuses on the best interests of the child. The court will give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. The status quo is not the default position in determining what is in the best interests of the child, and by the same token, there is no presumption in favour of shared or equal parenting arrangements and/or decision-making responsibility regimes. The sole focus of the court is the best interests of the child in the specific factual context before it.

Child Maintenance

In Canada, child support is defined as the amount of financial support one parent must pay to the other parent to help support their child or children while in the care of the other parent. 

Canada’s Federal Child Support Guidelines are rules and tables for calculating the quantum of child support one parent must pay to the other parent. The quantum of child support that one (or each) parent is responsible for depends on several factors – among which are the division of parenting time, each parent’s yearly salary, and the needs of the child. The Federal Child Support Guidelines are designed to advance the best interests of children and to ensure that child support orders are fair, objective, and consistent across Canada, as well as straightforward and inexpensive to review on an annual basis. To calculate the support owing in any given year, the Federal Child Support Guidelines mandate that parents provide certain financial information to one other on request. Child support orders based on the Federal Child Support Guidelines are enforceable across Canada.

In cases where the parties can reach an agreement on child support issues, there is no requirement that the agreement be presented to the court. In these circumstances (ie, where there is no court involvement), the parties can reach agreements that do not necessarily follow the Federal Child Support Guidelines. However, if the parties were married and seek a divorce order, then the child support arrangements will be scrutinised by the court and the court will not grant the divorce until it is satisfied that the children have been appropriately provided for. Usually this requires compliance with the Federal Child Support Guidelines, although there are exceptions where special arrangements have been made that benefit the children.

In Canada, courts routinely make orders in relation to child support. Typically, there is no time limit or fixed duration set with regard to such orders at first instance. Rather, child support will end for a child when that child ceases to be a child entitled to support, as that term is defined by the common law in the relevant jurisdiction. This can happen as a result of various circumstances, which include but are not limited to:

• a child no longer lives with the parents;
• a child becomes self-supporting;
• a child turns 18 years of age, unless unable to become self-supporting owing to illness, disability or other reasons;
• a child obtains one post-secondary degree or diploma;
• a child marries;
• a child dies; or
• a party dies, provided appropriate security is in place at the time of death.

Under the Federal Divorce Act, only spouses are able to bring an application for child support. However, under provincial legislation there are limited circumstances in which a child may bring their own child support application. Typically, this requires a child who is under the age of 18 (or who has not yet completed high school) to demonstrate that they have not voluntarily withdrawn from parental control – see, for example, Letourneau v Haskell (1979) and G(O) v G(R) (2017).

With limited exceptions, courts do not have the power to make orders that dictate the upbringing of a child. Decision-making responsibility is the right of a person to make decisions about the child. In a situation where parents have diverging views on a specific issue relating to the child, it is the court’s role to determine which parent is best equipped to make the determination of what is in the child’s best interests. Thereafter, it is up to the parent who has been granted decision-making responsibility to exercise that responsibility in a manner that is consistent with the best interests of the child.

Parental Alienation

Parental alienation is a serious issue, which first started to be identified by Ontario courts in the 1990s and has become an increasingly prevalent concept in Canadian family law cases. It is premised on one parent choosing to damage the character of their spouse and this, in turn, damaging the child’s relationship with the “rejected” parent. Although there is no one approach taken by courts in evaluating alienation, courts tend to focus on the harmful impact alienation has on the alienated children.

The courts have generally relied on the wide plethora of social science literature to guide their analysis of whether one party is exemplifying alienating behaviour and whether children are exhibiting indicia of exposure to alienating conduct by a parent. The court will look to a variety of behavioural cues from both the alienating parent and the alienated child as indicators of the presence of parental alienation, serving as predictors of future conflict and relationship dysfunction. Some factors that the court will consider include (but are not limited to):

• a parent making derogatory statements about the other parent;
• a parent including the children in the litigation;
• a parent making the child feel guilty about spending time with the other parent; and
• a parent falsifying allegations about emotional, physical and sexual abuse.

The court will then look for a corresponding irrational and unfounded rejection of the alienated parent.

The remedies order in a finding of alienation have included parental educational programmes, reconciliation therapy, and changes to custody arrangements. See MM(V) v CMV (2017) for an overview of alienation literature.

Views of the Child

The child’s perspective, views and preferences are important factors for the court to consider in parenting cases. Although children are able to testify, it is widely accepted that it is harmful and not in the best interests of children to be brought into the courtroom. This reality must be balanced by the principle that children have a right to have their views heard on matters that concern them, as articulated under Article 12 of the United Nations Conventions on the Rights of the Child 1989 (to which Canada is a signatory).

In order to protect children from the conflict between the parties, some provinces will order that judicial interviews take place. Frequently, provincial statute mandates that the interview be recorded and that the child be entitled to have counsel present during the interview. Depending on the province, courts may appoint a children’s lawyer representative to evaluate and represent the child’s wishes or interests within the litigation. Generally, the court is obliged to ‒ if possible ‒ take into consideration the views and preference of the child to the extent that the child is able to express them and the views are deemed sufficiently independent and reliable. Where applicable, the child’s views will be given weight proportionate to the child’s age and maturity, among other factors.

Parties can decide to use ADR at any point in their separation, including before starting any proceedings in court. The ADR process can be used to resolve all issues, no matter how big or how small. The parties can even choose to have all interim issues dealt with by ADR yet have the final issues resolved in the courtroom. The most common forms of ADR for family law disputes are mediation, arbitration, mediation-arbitration, and collaborative family law. Parties must voluntarily enter into such processes.

No ADR processes are mandated by the court in family law proceedings, although discussions and mediated resolutions are encouraged. The court does frequently refer family law litigants to publicly funded mediation services where the dispute is deemed appropriate for such a form of dispute resolution.

In order for agreements reached outside of court to be enforceable, they must be made in writing, signed by the parties, dated, and witnessed. A court may, on application, set aside a domestic contract or a provision in it if:

• a party failed to disclose to the other significant assets (or significant debts or other liabilities) existing when the domestic contract was made;
• a party did not understand the nature or consequences of the domestic contract; or
• otherwise in accordance with the law of contract.

Currently, there are no requirements imposed by statute for parties to engage in ADR. However, in the recent amendments to the Divorce Act that came into effect on 1 March 2021, Parliament mandated that ‒ to the extent that it is appropriate to do so – the parties to a proceeding must try to resolve matters that may be the subject of an order under the Divorce Act through a family dispute resolution process. These new changes have imposed a duty on legal advisors to encourage clients to try to resolve issues through a family dispute resolution process unless it would be clearly inappropriate to do so.

In Ontario, the media and press are generally permitted to report on cases involving children (including family law matters), unless there are specific court orders or legal restrictions in place. In order to safeguard the confidentiality and well-being of minors involved in legal proceedings, courts may impose publication bans or other restrictions to limit the extent to which media can report on child-related cases.

When reporting on child protection hearings, it is prohibited to publish or publicly disclose information that reveals the identity of a child who is either a witness or involved in a hearing or is the focus of a legal proceeding, pursuant to Section 87(8) of the Child, Youth and Family Services Act 2017. This includes the child’s parent, foster parent, or family member.

Child Anonymity

As a result of Canada’s open court principle, children are not automatically anonymised in court proceedings in most Canadian provinces. Quebec is the only Canadian province that automatically anonymises the parties’ names with letters and a catalogue number.

In provinces other than Quebec, if a party to a proceeding wishes to anonymise any names within the proceeding, they are generally required to obtain a court order. Typically, the order is obtained by motion in a scheduling court or in writing before commencement of the proceedings.