The Ontario Family Law Act R.S.O. 1990, s. F.3 as amended by the Uniform Federal and Provincial Child Support Guidelines Act, 1997 S.O. 1997, c. 20 An Unofficial Consolidation Sections 1 - 6

Preamble

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children;

óTherefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

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1. Definitions

(1)   In this Act,

"child" includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

"child support guidelines" means the guidelines established by the regulations made under subsections 69(2) and (3).

"cohabit" means to live together in a conjugal relationship, whether within or outside marriage;

"court" means the Ontario Court (Provincial Division), the Unified Family Court or the Ontario Court (General Division);

"domestic contract" means a domestic contract as defined in Part IV (Domestic Contracts);

"parent" includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody;

"paternity agreement" means a paternity agreement as defined in Part IV (Domestic Contracts);

"spouse" means either of a man and woman who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.

Polygamous marriages

(2)  In the definition of "spouse", a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid. R.S.O. 1990, c.ÝF.3, s.Ý1.

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2. Staying application

All proceedings in one court

(2)   Except as this Act provides otherwise, no person who is a party to an application under this Act shall make another application under this Act to another court, but the court may order that the proceeding be transferred to a court having other jurisdiction where, in the first court's opinion, the other court is more appropriate to determine the matters in issue that should be determined at the same time.

Applications in Ontario Court (General Division)

(3)   In the Ontario Court (General Division), an application under this Act may be made by action or application.

Statement re removal of barriers to remarriage

(4)   A party to an application under section 7 (net family property), 10 (questions of title between spouses), 33 (support), 34 (powers of court) or 37 (variation) may serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that,

(a)   the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith; and

(b)   the other party has not done so, despite a request.

Idem

Dismissal, etc.

(5)   Within ten days after service of the statement, or within such longer period as the court allows, the party served with a statement under subsection (4) shall serve on the other party and file with the court a statement, verified by oath or statutory declaration, indicating that the author of the statement has removed all barriers that are within his or her control and that would prevent the other spouse's remarriage within that spouse's faith.

Dismissal, etc.

(6) When a party fails to comply with subsection (5),

(a)   if the party is an applicant, the proceeding may be dismissed;

(b)   if the party is a respondent, the defence may be struck out.

Exception

(7)    Subsections (5) and (6) do not apply to a party who does not claim costs or other relief in the proceeding.

Extension of times

(8)   The court may, on motion, extend a time prescribed by this Act if it is satisfied that,

(a)   there are apparent grounds for relief;

(b)   relief is unavailable because of delay that has been incurred in good faith; and

(c)   no person will suffer substantial prejudice by reason of the delay.

Incorporation of contract in order

(9)    A provision of a domestic contract in respect of a matter that is dealt with in this Act may be incorporated in an order made under this Act.

Act subject to contracts

(10)   A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.

Registration of orders

(11)   An order made under this Act that affects real property does not affect the acquisition of an interest in the real property by a person acting in good faith without notice of the order, unless the order is registered in the proper land registry office. R.S.O. 1990, c.ÝF.3, s.Ý2.

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3. Mediation

(1)   In an application under this Act, the court may, on motion, appoint a person whom the parties have selected to mediate any matter that the court specifies.

Consent to act

(2)  The court shall appoint only a person who,

(a)   has consented to act as mediator; and

(b)   has agreed to file a report with the court within the period of time specified by the court.

Duty of mediator

(3)   The mediator shall confer with the parties, and with the children if the mediator considers it appropriate to do so, and shall endeavour to obtain an agreement between the parties.

Full or limited report

(4)   Before entering into mediation, the parties shall decide whether,

(a)   the mediator is to file a full report on the mediation, including anything that he or she considers relevant; or

(b)   the mediator is to file a limited report that sets out only the agreement reached by the parties or states only that the parties did not reach agreement.

Filing and copies of report

(5)    The mediator shall file with the clerk or registrar of the court a full or limited report, as the parties have decided, and shall give a copy to each of the parties.

Admissions, etc., in the course of mediation

(6)    If the parties have decided that the mediator is to file a limited report, no evidence of anything said or of any admission or communication made in the course of the mediation is admissible in any proceeding, except with the consent of all parties to the proceeding in which the mediator was appointed.

Fees and expenses

(7)   The court shall require the parties to pay the mediator's fees and expenses and shall specify in the order the proportions or amounts of the fees and expenses that each party is required to pay.

Idem, serious financial hardship

(8)   The court may require one party to pay all the mediator's fees and expenses if the court is satisfied that payment would cause the other party or parties serious financial hardship. R.S.O. 1990, c.ÝF.3, s.Ý3.

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4. Definitions

"court" means a court as defined in subsection 1Ý(1), but does not include the Ontario Court (Provincial Division);

"matrimonial home" means a matrimonial home under section 18 and includes property that is a matrimonial home under that section at the valuation date;

"net family property" means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a)   the spouse's debts and other liabilities, and

(b)   the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse's debts and other liabilities, calculated as of the date of the marriage;

"property" means any interest, present or future, vested or contingent, in real or personal property and includes,

(a)   property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,

(b)   property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and

(c)   in the case of a spouse's rights under a pension plan that have vested, the spouse's interest in the plan including contributions made by other persons;

"valuation date" means the earliest of the following dates:

1.   The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

2.   The date a divorce is granted.

3.   The date the marriage is declared a nullity.

4.   The date one of the spouses commences an application based on subsection 5Ý(3) (improvident depletion) that is subsequently granted.

5.   The date before the date on which one of the spouses dies leaving the other spouse surviving.

Excluded property

(2)   The value of the following property that a spouse owns on the valuation date does not form part of the spouse's net family property:

1.   Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2.   Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse's net family property.

3.   Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4.   Proceeds or a right to proceeds of a policy of life insurance, as defined in the Insurance Act, that are payable on the death of the life insured.

5.   Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

6.   Property that the spouses have agreed by a domestic contract is not to be included in the spouse's net family property.

Onus of proof re deductions and exclusions

(3)  The onus of proving a deduction under the definition of "net family property" or an exclusion under subsection (2) is on the person claiming it.

(4) Close of business

(4)   When this section requires that a value be calculated as of a given date, it shall be calculated as of close of business on that date.

Net family property not to be less than zero

(5)   If a spouse's net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c.ÝF.3, s.Ý4.

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5. Equalization of net family properties

(1)   When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

Idem

(2)   When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them.

Improvident depletion of spouse's net family property

(3)   When spouses are cohabiting, if there is a serious danger that one spouse may improvidently deplete his or her net family property, the other spouse may on an application under section 7 have the difference between the net family properties divided as if the spouses were separated and there were no reasonable prospect that they would resume cohabitation.

No further division

(4)   After the court has made an order for division based on subsection (3), neither spouse may make a further application under section 7 in respect of their marriage.

Idem

(5)   Subsection (4) applies even though the spouses continue to cohabit, unless a domestic contract between the spouses provides otherwise.

Variation of share

(6)   The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a)   a spouse's failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b)   the fact that debts or other liabilities claimed in reduction of a spouse's net family property were incurred recklessly or in bad faith;

(c)   the part of a spouse's net family property that consists of gifts made by the other spouse;

(d)   a spouse's intentional or reckless depletion of his or her net family property;

(e)   the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f)   the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g)   a written agreement between the spouses that is not a domestic contract; or

(h)   any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

Purpose

(7)   The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c.ÝF.3, s.Ý5.

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6. Election: spouse's will

(1)   When a spouse dies leaving a will, the surviving spouse shall elect to take under the will or to receive the entitlement under section 5.

Idem: spouse's intestacy

(2)   When a spouse dies intestate, the surviving spouse shall elect to receive the entitlement under Part II of the Succession Law Reform Act or to receive the entitlement under section 5.

Idem: spouse's partial intestacy

(3)   When a spouse dies testate as to some property and intestate as to other property, the surviving spouse shall elect to take under the will and to receive the entitlement under Part II of the Succession Law Reform Act, or to receive the entitlement under section 5.

Property outside estate

(4)   A surviving spouse who elects to take under the will or to receive the entitlement under Part II of the Succession Law Reform Act, or both in the case of a partial intestacy, shall also receive the other property to which he or she is entitled because of the first spouse's death.

Gifts by will

(5)  The surviving spouse shall receive the gifts made to him or her in the deceased spouse's will in addition to the entitlement under section 5 if the will expressly provides for that result.

Insurance, etc.

(6)    Where a surviving spouse,

(a)   is the beneficiary,

(i)   of a policy of life insurance, as defined in the Insurance Act, that was taken out on the life of the deceased spouse and owned by the deceased spouse or was taken out on the lives of a group of which he or she was a member, or

(ii)   of a lump sum payment provided under a pension or similar plan on the death of the deceased spouse; and

(b)   elects or has elected to receive the entitlement under section 5,

the payment under the policy or plan shall be credited against the surviving spouse's entitlement under section 5, unless a written designation by the deceased spouse provides that the surviving spouse shall receive payment under the policy or plan in addition to the entitlement under section 5.

Idem

(7)   If a surviving spouse,

(a)   elects or has elected to receive the entitlement under section 5; and

(b)   receives payment under a life insurance policy or a lump sum payment provided under a pension or similar plan that is in excess of the entitlement under section 5,

and there is no written designation by the deceased spouse described in subsection (6), the deceased spouse's personal representative may recover the excess amount from the surviving spouse.

Effect of election to receive entitlement under section 5

(8)   When a surviving spouse elects to receive the entitlement under section 5, the gifts made to him or her in the deceased spouse's will are revoked and the will shall be interpreted as if the surviving spouse had died before the other, unless the will expressly provides that the gifts are in addition to the entitlement under section 5.

Idem

(9)   When a surviving spouse elects to receive the entitlement under section 5, the spouse shall be deemed to have disclaimed the entitlement under Part II of the Succession Law Reform Act.

Manner of making election

(10)   The surviving spouse's election shall be in the form prescribed by the regulations made under this Act and shall be filed in the office of the Estate Registrar for Ontario within six months after the first spouse's death.

Deemed election

(11)   If the surviving spouse does not file the election within that time, he or she shall be deemed to have elected to take under the will or to receive the entitlement under the Succession Law Reform Act, or both, as the case may be, unless the court, on application, orders otherwise.

Priority of spouse's entitlement

(12)   The spouse's entitlement under section 5 has priority over,

(a)   the gifts made in the deceased spouse's will, if any, subject to subsection (13);

(b)   a person's right to a share of the estate under Part II (Intestate Succession) of the Succession Law Reform Act;

(c)   an order made against the estate under Part V (Support of Dependants) of the Succession Law Reform Act, except an order in favour of a child of the deceased spouse.

Exception

(13)   The spouse's entitlement under section 5 does not have priority over a gift by will made in accordance with a contract that the deceased spouse entered into in good faith and for valuable consideration, except to the extent that the value of the gift, in the court's opinion, exceeds the consideration.

Distribution within six months of death restricted

(14)   No distribution shall be made in the administration of a deceased spouse's estate within six months of the spouse's death, unless,

(a)   the surviving spouse gives written consent to the distribution; or

(b)   the court authorizes the distribution.

Idem, notice of application

(15)   No distribution shall be made in the administration of a deceased spouse's death after the personal representative has received notice of an application under this Part, unless,

(a)   the applicant gives written consent to the distribution; or

(b)   the court authorizes the distribution.

Extension of limitation period

(16)   If the court extends the time for a spouse's application based on subsection 5Ý(2), any property of the deceased spouse that is distributed before the date of the order and without notice of the application shall not be brought into the calculation of the deceased spouse's net family property.

Exception

(17)   Subsections (14) and (15) do not prohibit reasonable advances to dependants of the deceased spouse for their support.

Definition

(18)   In subsection (17), "dependant" has the same meaning as in Part V of the Succession Law Reform Act.

Liability of personal representative

(19)   If the personal representative makes a distribution that contravenes subsection (14) or (15), the court makes an order against the estate under this Part and the undistributed portion of the estate is not sufficient to satisfy the order, the personal representative is personally liable to the applicant for the amount that was distributed or the amount that is required to satisfy the order, whichever is less.

Order suspending administration

(20)  On motion by the surviving spouse, the court may make an order suspending the administration of the deceased spouse's estate for the time and to the extent that the court decides. R.S.O. 1990, c.ÝF.3, s.Ý6.