Family Law in Canada

Constitutional Division of Powers

Family law in Canada reflects a distinctive bifurcated jurisdictional framework. The Constitution Act, 1867 assigns Parliament jurisdiction over marriage and divorce under s. 91(26), while the provinces have authority over the solemnization of marriage (s. 92(12)) and matters relating to property and civil rights (s. 92(13)). This division means that federal legislation governs the capacity to marry, the grounds for divorce, and ancillary relief (spousal and child support, parenting arrangements, and the corollary relief available upon divorce). Provincial legislation governs the formal requirements for marriage, the division of matrimonial property upon relationship breakdown, child protection, adoption, and the enforcement of support orders.

This constitutional arrangement creates a dual-track system. The Divorce Act applies to all married spouses who seek a divorce, regardless of the province of residence. Provincial family law statutes (such as Ontario’s Family Law Act, British Columbia’s Family Law Act, and Alberta’s Family Law Act) govern the rights and obligations of unmarried spouses and married spouses who separate but do not divorce.

Marriage and Its Dissolution

The capacity to marry is governed by federal law, which requires that the parties be of opposite sex (a requirement eliminated by the Civil Marriage Act, SC 2005, c 33, following the Supreme Court’s opinion in Reference re Same-Sex Marriage, 2004 SCC 79), be not within prohibited degrees of consanguinity or affinity, and be unmarried and of lawful age (generally 18, though younger parties may marry with parental consent where permitted by provincial law). The Civil Marriage Act provides that marriage is the lawful union of two persons to the exclusion of all others, extending marital capacity to same-sex couples and confirming the religious freedom of officials to refuse to perform marriages that are contrary to their religious beliefs.

The Divorce Act, RSC 1985, c 3 (2nd Supp), provides the sole ground for divorce in Canada: breakdown of the marriage, established by proof of (a) separation of the spouses for at least one year immediately preceding the determination of the divorce proceeding, (b) adultery by the respondent, or (c) physical or mental cruelty rendering continued cohabitation intolerable. The one-year separation period is the most commonly invoked basis for divorce and requires no attribution of fault. The Act provides for corollary relief, including spousal support (s. 15.2), child support (s. 15.1), and parenting orders (s. 16.1).

The 2021 Divorce Act Reforms

The Divorce Act was substantially amended effective March 1, 2021, introducing the most significant reforms to Canadian family law in decades. The amendments replaced the terminology of “custody” and “access” with parenting orders and decision-making responsibility, and introduced the concept of parenting time. The reforms codified a revised list of best interests of the child factors (s. 16(3)), including the child’s physical, emotional, and psychological safety, security, and well-being, as well as the child’s cultural, linguistic, religious, and spiritual upbringing and heritage. The amendments specifically require consideration of family violence (s. 16(4)), defined broadly to include physical abuse, psychological abuse, financial abuse, threats, and coercive control. The court must consider the impact of family violence on the child’s safety, security, and well-being, as well as on the ability of the person engaging in family violence to care for the child.

The 2021 reforms also introduced a new framework for relocation (s. 6.1), requiring a parent seeking to relocate with a child to provide notice to any person with parenting time or decision-making responsibility. If the relocation is contested, the court must assess whether the relocation is in the best interests of the child, considering specified factors including the reasons for the relocation, the impact on the child’s relationship with the other parent, and whether there are practical arrangements to maintain that relationship. The party proposing relocation bears the onus of demonstrating that the relocation is in the best interests of the child.

Child Support

Child support is governed by the Divorce Act for divorcing parents and by provincial legislation for unmarried parents, though the Federal Child Support Guidelines (SOR/97-175) apply in both contexts. The Guidelines establish a presumptive formula based on the payor’s income, the number of children, and the province of residence. The formula produces the table amount of support, which represents the basic obligation for child support. For parents with incomes over $150,000, the Guidelines provide for discretion regarding the amount of support payable on income above that threshold, depending on the circumstances of the child.

In addition to the table amount, the Guidelines require special or extraordinary expenses (s. 7) to be shared between parents in proportion to their incomes. These expenses include child care costs, medical and dental insurance premiums, health-related expenses, post-secondary education, and extracurricular activities. The court may also vary or deviate from the Guidelines in cases of undue hardship (s. 10), but only where the party seeking the variation establishes that the hardship outweighs the hardship that would be suffered by the child or the other parent.

Child support is considered the right of the child and cannot be contracted out of by the parents. Agreements that purport to waive child support are unenforceable. The applicable child support guidelines may be reviewed every two years through the federal government’s mandated review process.

Spousal Support

Spousal support is governed by s. 15.2 of the Divorce Act and by provincial family law statutes for non-divorcing spouses. The objectives of spousal support are set out in s. 15.2(6): (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of children; (c) relieve any economic hardship arising from the marriage breakdown; and (d) promote the economic self-sufficiency of each spouse within a reasonable period of time.

The Supreme Court of Canada in Bracklow v. Bracklow, [1999] 1 SCR 420, confirmed three conceptual grounds for spousal support: compensatory (addressing economic disadvantage suffered by one spouse as a result of the marriage and its breakdown), non-compensatory or needs-based (addressing the need of one spouse, regardless of the cause), and contractual (based on separation agreements or other contractual arrangements). The Court in Bracklow held that all three bases may coexist and that courts must consider all relevant factors, not just compensatory principles.

In Miglin v. Miglin, 2003 SCC 24, the Supreme Court established the framework for judicial review of separation agreements concerning spousal support. Courts must first examine the circumstances in which the agreement was formed, including the relative bargaining power of the parties and whether there was fraud, duress, or unconscionability. If the agreement survives this scrutiny, the court must determine whether the agreement reflects the parties’ intentions and whether the terms still comply with the objectives of the Divorce Act. The Miglin framework reflects a balance between promoting private ordering in family law and ensuring that agreements do not undermine the statutory objectives of spousal support.

Property Division

The division of matrimonial property upon separation is governed by provincial law, as property and civil rights fall within provincial jurisdiction. The regimes vary significantly across provinces, though most follow a deferred community or equalization model. Ontario’s Family Law Act, RSO 1990, c F.3, provides for the equalization of net family property (the increase in each spouse’s assets, less debts, during the marriage). Each spouse is entitled to the lesser of half the difference between the two net family properties, subject to exclusions (certain gifts, inheritances, and personal injury awards). British Columbia’s Family Law Act, SBC 2011, c 25, adopts a presumption of equal division of family property (including property acquired during the relationship and increases in the value of excluded property) unless it would be significantly unfair to divide it equally.

Quebec operates a distinct civil law regime under the Civil Code of Québec, which provides for the family patrimony — the compulsory equal division of assets used for family purposes (the family residence, household goods, and retirement savings) regardless of matrimonial regime, and the supplemental matrimonial regime (partnership of acquests) applicable to spouses who have not contracted out.

Parenting Arrangements

Since the 2021 Divorce Act reforms, the federal framework for parenting uses the concepts of parenting time (the time a child spends in the care of a parent) and decision-making responsibility (the authority to make significant decisions about the child, including decisions relating to health, education, culture, language, and religion). The court may make parenting orders allocating parenting time and decision-making responsibility in the best interests of the child, considering the statutory factors and giving primary consideration to the child’s physical, emotional, and psychological safety.

Provincial legislation largely mirrors this approach. The maximum contact principle (s. 16(6) of the Divorce Act) provides that a child should have as much time with each parent as is consistent with the best interests of the child. The principle is no longer expressed as a presumption in favour of maximum contact, having been displaced in the 2021 reforms by the general best interests framework. Courts increasingly favour arrangements that preserve meaningful relationships with both parents, though shared parenting is determined on the facts of each case rather than through presumptive formulas.

Common Law Relationships

The legal recognition of common law partners — unmarried persons who have cohabited in a conjugal relationship — varies significantly across Canadian jurisdictions. For federal purposes, common law partners are recognized after one year of continuous cohabitation (the Income Tax Act and the Canada Pension Plan). The Divorce Act does not apply to unmarried partners, as divorce is predicated on the existence of a valid marriage.

Provincial family law legislation provides varying degrees of recognition. British Columbia’s Family Law Act applies to spouses defined to include both married persons and those who have lived together in a marriage-like relationship for at least two years (or less if they have a child together), and provides for property division, spousal support, and parenting orders on the same basis as married spouses. Ontario’s Family Law Act does not provide for property division between unmarried spouses (absent unjust enrichment claims under the common law), though spousal support may be ordered under the Family Law Act after three years of cohabitation or if the parties have a child together. The Alberta Family Law Act provides for spousal support and parenting orders for adult interdependent partners but does not provide for property division. The variability in the treatment of common law partners underscores the constitutional complexity of Canadian family law and remains a subject of ongoing law reform debate.

Same-Sex Marriage

The legal framework for same-sex marriage in Canada was established through the Civil Marriage Act, SC 2005, c 33, which extended the legal capacity to marry to two persons of the same sex. The Act was enacted following the Supreme Court’s advisory opinion in Reference re Same-Sex Marriage, 2004 SCC 79, which confirmed that the federal Parliament has the exclusive authority to define marriage and that the proposed extension of marriage to same-sex couples was consistent with the Charter. The Act also includes a religious freedom guarantee (s. 3) affirming that no person is compelled to perform a marriage that is contrary to their religious beliefs.

The Civil Marriage Act brought Canadian marriage law into alignment with the Charter’s equality guarantee (s. 15), ensuring that same-sex couples have equal access to the institution of marriage and the legal rights and obligations that flow from it. All rights, obligations, and benefits under federal and provincial family law that apply to married spouses now apply equally to same-sex married couples.