Family Primer Series – Legislation

Welcome to the first article in Jim-Bob’s Family Primer series! This series of articles is intended to provide some basic information about how the Ontario family law system functions, to help you understand how the law can affect you and your family!

Let’s begin.

The term, “family law”, relates to those areas of practice dealing with the care and maintenance of children and the breakdown of the family unit. All court actions are essentially a request of the court to take some action, whether that is to compel another party to transfer money or property, to stop someone from doing something, or to set out a parenting arrangement. These decisions must be based on their interpretation of two different sources: the decisions of judges in previous cases (“case law”), or acts of parliament (“legislation”).

While there are several ‘judge-created remedies’ applicable to family cases that were developed over the years[1], most family remedies were created by statute. Most of the time, when you claim a family law remedy, you will claim under one of the following four pieces of legislation: the Divorce Act, the Family Law Act, the Children’s Law Reform Act, or the Child and Family Services Act.

While reviewing the governing legislation may sound like a daunting prospect, some basic information about the legislation governing family matters may be useful in understanding why your family case functions the way that it does. Below is a brief overview of the purpose of each piece of legislation and the kinds of remedies available to parties claiming under them.

Divorce Act, 1985, R.S.C., 1985, c. 3 (2nd Supp.): The Divorce Act is a piece of federal legislation that deals specifically with divorce and relief corollary to divorce. The Divorce Act sets out two kinds of remedy resulting from the breakdown of a marital relationship – divorce and corollary relief. There is an overlap between the corollary relief set out in the Divorce Act, and the relief that can be claimed under the Family Law Act. Remedies under both pieces of legislation can be claimed in a single application, and the legal consequences of applying for relief under one piece of legislation or the other should be considered prior to filing for that relief.

Family Law Act, R.S.O. 1990, Chapter F.3: The Ontario Family Law Act was created to deal with issues resulting from the breakdown of a spousal relationship. The Family Law Act includes remedies for spousal support and child support, and also sets out a system for the division of family property for married couples only. The Family Law Act also sets out an adult child’s obligation to provide financial support for their parents.

Children’s Law Reform Act, R.S.O. 1990, CHAPTER C.12: The Children’s Law Reform Act was created to deal with issues pertaining to parentage, guardianship, custody of and access to children. Notably, the Family Law Act also governs custody and access applications by third parties (such as grandparents).

Child and Family Services Act, R.S.O. 1990, CHAPTER C.11: The Ontario Child and Family Services Act and was created to set out a child protection regime for the province. This regime was created to address circumstances where a child is at risk of harm while in the care of a parent or guardian. The Child and Family Services Act addresses not only physical abuse, but also addresses the issues of emotional abuse, neglect, and incapacity of a guardian. The Act sets out that the Minister of Child and Youth Services is responsible for administration of the Act, and delegates his powers to regional Children’s Aid Societies, who investigate complaints involving child safety. Notably, the Child and Family Services Act also deals with the issue of adoption.

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[1] In some circumstances, a Party may want to consider filing an application with the court requesting a common law remedy. A common law remedy is one which arises from prior court decisions. This is particularly relevant for unmarried couples, since unmarried couples in Ontario do not have a right to division of family property under the Family Law Act. Unjust enrichment is an example of a judge-created remedy that impacts many common-law spouses in Ontario.

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