NCA Family Law cheat sheet

Common-law partnership in most Canadian provinces requires cohabitation in a conjugal relationship for a continuous period (commonly two years, or one year with a child of the relationship); the exact threshold is set by provincial statute.

A valid marriage requires capacity (age, not already married, sufficient mental capacity), consent freely given, and solemnization by a person authorized to perform marriages; failure of any element supports annulment rather than divorce.

Marriage is a federal head of power under s. 91(26) of the Constitution Act, 1867, while solemnization of marriage is provincial under s. 92(12); capacity rules are therefore federal and ceremony rules provincial.

A marriage is void ab initio where a party lacked capacity (e.g., already married, prohibited consanguinity, under the statutory age); a voidable marriage is valid until annulled (e.g., lack of consummation, duress, fraud going to the essence).

Provincial marriage Acts set the minimum age (commonly 16 with parental consent, 18 without) and require licences or publication of banns; non-compliance affects solemnization, not usually validity if parties acted in good faith.

Religious and civil marriages have the same legal effect once registered; a purely religious ceremony not registered under provincial law may not create a legally recognized marriage.

Cohabitation does not require sexual exclusivity but typically requires a conjugal relationship, shared life, and some permanence; courts weigh economic interdependence, social recognition, and shared shelter.

Parentage presumptions arise from marriage, cohabitation, and acknowledgment; provincial parentage Acts and the federal Divorce Act govern who may be declared a legal parent, including for assisted reproduction.

The Divorce Act (federal) governs divorce; a court may grant divorce only if the spouses have lived separate and apart for at least one year (s. 8(2)(a)) or on grounds of adultery or cruelty under s. 8(2)(b).

Separation under s. 8(2)(a) may be counted even if the spouses resumed cohabitation for a period of 90 days or less with reconciliation in view; periods over 90 days restart the clock.

Adultery and cruelty do not require the other spouse's consent; cruelty requires conduct causing physical or mental harm that makes continued cohabitation intolerable.

A divorce cannot be granted unless reasonable arrangements for child support have been made (s. 11(1)(b) of the Divorce Act); courts must also consider s. 11(1)(a) barriers to remarriage.

Annulment is a declaration that a marriage was void ab initio (e.g., prior subsisting marriage, prohibited degrees, lack of capacity) or voidable (e.g., duress, fraud, impotence); the court's jurisdiction is provincial under the inherent jurisdiction or specific statutes.

Divorce is a judgment in rem; a court has jurisdiction if either spouse has been ordinarily resident in the province for at least one year immediately before the proceeding (Divorce Act s. 3(1)).

A foreign divorce is recognized in Canada if granted by a court with a real and substantial connection to the parties, subject to defences such as fraud or denial of natural justice.

Religious barriers to remarriage (e.g., refusal to grant a get) may be addressed through provincial family law remedies, but a civil court cannot compel a religious tribunal; some provinces have enacted specific removal-of-barrier legislation.

Most common-law provinces use a deferred sharing regime: each spouse keeps property during marriage, and on separation the value of net family property is equalized (Ontario) or matrimonial property is shared (e.g., equal division in the western provinces).

Ontario's net family property (NFP) formula: NFP = value of all property on the valuation date minus debts on that date minus the value of property owned at marriage (excluding the matrimonial home) minus excluded property.

Excluded property typically includes gifts and inheritances received during marriage, damages for personal injury, life insurance proceeds, and property traceable to those items; increases in value of excluded property may or may not be excluded depending on the statute.

The matrimonial home receives special treatment in several provinces: in Ontario its full value is included in NFP on the valuation date, and it cannot be excluded even if owned before marriage or received by gift.

The valuation date is generally the date of separation (or the date the application is issued in some provinces); the choice of date materially affects the equalization payment.

Quebec's regime is a partnership of acquests by default: property acquired during marriage is shared, while property owned at marriage and inheritances remain private; spouses may opt for separation of property by marriage contract.

The equalization payment is half the difference between the spouses' NFPs; if one spouse's NFP is negative, it is treated as zero for the calculation.

Trust and unjust enrichment claims (e.g., constructive trust, joint family venture) may provide remedies where statutory division is unavailable, such as for common-law partners in provinces without statutory property rights.

Spousal support under the Divorce Act is governed by s. 15.2: the court considers the length of the relationship, roles during marriage, economic advantage/disadvantage, and the condition, means, and needs of each spouse.

The Spousal Support Advisory Guidelines (SSAG) are advisory, not law; they provide ranges based on income, length of marriage, and whether there are dependent children.

The without-child-support formula uses 1.5% to 2% of the income difference per year of marriage (or per year of cohabitation), subject to caps; duration is typically 0.5 to 1 year of support per year of marriage.

The with-child-support formula uses a range of 40% to 46% of the payor's gross income minus the recipient's income, with adjustments; it is applied with the child support guidelines.

The SSAG ceiling is $350,000 in payor income (as updated); above the ceiling, the formulas are applied with discretion and may be adjusted.

Compensatory support addresses economic disadvantage arising from the relationship (e.g., career sacrifice); non-compensatory (needs-based) support addresses disparity in living standards and the recipient's needs.

Spousal support may be reviewed or varied if there is a material change in circumstances; the court retains jurisdiction to vary under s. 17 of the Divorce Act.

A support obligation may continue after retirement or remarriage; remarriage of the recipient is a factor but not an automatic termination, and courts consider the new spouse's income.

The Federal Child Support Guidelines (FCSG) set the presumptive amount based on the payor's gross annual income, the number of children, and the province of residence (the applicable table).

The Guidelines apply to children under the age of majority; for children over the age of majority, the court considers whether the child is still dependent (e.g., in full-time post-secondary education).

Special or extraordinary expenses under s. 7 (e.g., childcare, medical, extracurricular, post-secondary) are shared in proportion to the parents' incomes, subject to the necessity and reasonableness test.

The payor's income is determined under ss. 15-20: line 150 income, adjusted for self-employment, non-cash benefits, and imputed income where the payor is intentionally underemployed or unreasonably deducts expenses.

The court may impute income (s. 19) where a parent fails to provide income information, is intentionally underemployed, or has income from assets not reflected in line 150.

Child support is the right of the child and cannot be bargained away; a parent cannot contract out of the child's right to support, though a court may consider a domestic contract under s. 15.

A child support order may be varied if there is a change in circumstances, including a change in income of more than 10% or a change in the number of children.

The presumptive rule is that the table amount applies unless the court finds it would be inequitable, such as shared parenting (40% or more of the time) under s. 9, or a child over the age of majority.

The Divorce Act was amended in 2019 to replace 'custody' and 'access' with 'decision-making responsibility' and 'parenting time'; the best interests of the child is the only consideration under s. 16.

Section 16(3) lists factors: the child's needs, the child's views and preferences (depending on age and maturity), the nature and strength of the child's relationships, each parent's willingness to support the child's relationship with the other parent, and family violence.

Parenting time may be allocated in a shared arrangement (often 40% or more of the time) or a primary residence with parenting time for the other parent; the terminology varies by statute.

A court may order a parenting assessment or a voice-of-the-child report; the child's views are considered but are not determinative, and the weight depends on age and maturity.

The maximum contact principle (s. 16(10) pre-2019) has been replaced by the best interests framework, but the value of contact with both parents remains a factor.

Relocation (moving) under s. 16.9 requires notice to the other parent and a court application if the move is contested; the court applies the best interests test, including the impact on the child's relationship with the other parent.

Family violence is a factor under s. 16(3)(j); the court must consider the nature, seriousness, and frequency of the violence and its impact on the child's safety and well-being.

Parenting plans and parenting coordination may be ordered or agreed to; a parenting plan sets out schedules, decision-making, and communication, and may be incorporated into a court order.

Child protection is a provincial responsibility; each province has a child protection statute (e.g., Ontario's Child, Youth and Family Services Act) that sets out the duty to report and the grounds for intervention.

The paramount consideration in child protection proceedings is the best interests of the child, including the child's safety and well-being; the threshold for intervention is typically that the child is in need of protection.

A duty to report exists in every province: professionals and, in some provinces, all persons who have reasonable grounds to suspect a child is in need of protection must report to a child protection agency.

Apprehension (removal) of a child requires statutory grounds and, in most provinces, either a warrant or exigent circumstances; the agency must bring the matter before a court within a statutory time limit.

Protection hearings determine whether a child is in need of protection; dispositions may include supervision, temporary care, or permanent wardship, with a statutory preference for the least intrusive option.

Permanent wardship or Crown wardship may be ordered where the child cannot be returned home within a statutory timeline (often 12 to 24 months); the child's best interests and the plan of care are central.

Customary care and Indigenous child welfare principles apply under provincial statutes and federal legislation (the Act respecting First Nations, Inuit and Métis children, youth and families), which affirms Indigenous jurisdiction over child welfare.

Child protection records and proceedings are confidential; publication bans and privacy protections apply, and access to the file is restricted to parties and authorized persons.

A restraining order under the Divorce Act (s. 16.9 or the former s. 16(4)) may be granted where there are reasonable grounds to believe the moving party or a child is at risk of harm; the order may restrain a spouse from contacting the other spouse or a child.

Provincial family violence statutes (e.g., Ontario's Family Law Act Part IV) allow a court to grant a restraining order where there are reasonable grounds to believe there is a risk of family violence.

Emergency protection orders (EPOs) are available in many provinces on an expedited basis, often without notice, and may include exclusive occupation of the family home and a no-contact provision.

A peace bond under the Criminal Code (s. 810) is a criminal law remedy separate from a family law restraining order; breach of a peace bond is a criminal offence.

Family violence includes physical, sexual, psychological, and financial abuse, and threats; the court considers the impact on the child and the pattern of conduct, not just isolated incidents.

A restraining order may be varied or revoked on application; the court considers whether the risk has changed and whether the order is still necessary.

Exclusive possession of the matrimonial home may be ordered under provincial family law statutes where it is in the best interests of the child or necessary for the safety of a spouse.

A restraining order does not automatically affect parenting time; the court must consider the order in the best interests analysis and may impose supervised parenting time or other safeguards.

A domestic contract (marriage contract, cohabitation agreement, separation agreement) is enforceable if it is in writing, signed by both parties, and witnessed; the formal requirements are set by provincial statute.

A court may set aside a domestic contract where a party did not disclose significant assets or debts, where there was duress, undue influence, or fraud, or where the contract is unconscionable.

A domestic contract cannot preclude a child's right to child support; a court may disregard a provision respecting child support if it is not in the child's best interests.

A separation agreement may address parenting time, decision-making, support, and property division; it is a binding contract once signed and may be incorporated into a court order.

Independent legal advice is not strictly required for enforceability in most provinces, but the absence of advice is a factor in claims of unconscionability or lack of understanding.

A marriage contract may address property division and spousal support, but it cannot validly limit a child's right to support or the court's jurisdiction over parenting.

A domestic contract may be varied by a later agreement in writing; oral variations are generally unenforceable unless the statute permits.

The court may set aside a contract if a party failed to disclose a material asset, even if the non-disclosure was innocent, depending on the provincial statute.

A court has jurisdiction to grant a divorce if either spouse has been ordinarily resident in the province for at least one year immediately before the proceeding (Divorce Act s. 3(1)).

For corollary relief (support, parenting), the court may exercise jurisdiction based on the child's habitual residence or the parties' connection to the province; the test under the Divorce Act and provincial statutes may differ.

The doctrine of forum non conveniens allows a court to decline jurisdiction where another forum is clearly more appropriate; the test is whether there is a real and substantial connection and whether the other forum is clearly more appropriate.

A foreign divorce is recognized if granted by a court with a real and substantial connection to the parties; recognition may be refused for fraud or denial of natural justice.

The Hague Convention on the Civil Aspects of International Child Abduction governs the return of wrongfully removed or retained children; the child's habitual residence and the wrongful removal are key issues.

A family law proceeding is commenced by an application or a statement of claim, depending on the province; the responding party files an answer or a statement of defence within the statutory time limit.

Disclosure is mandatory: parties must exchange financial statements, income tax returns, and property documents; failure to disclose may lead to costs, contempt, or an adverse inference.

Interim orders (temporary support, parenting time) may be obtained on a motion; the court considers the best interests of the child and the parties' financial circumstances on the evidence available.

Costs in family law are discretionary; the general rule is that the unsuccessful party pays, but the court may depart from the rule where the conduct of a party or the complexity of the issues warrants it.