The Ontario Family Law Act
R.S.O. 1990, s. F.3as amended by the
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The Ontario Family Law ActR.S.O. 1990, s. F.3as amended by the Uniform Federal and Provincial Child Support Guidelines Act, 1997S.O. 1997, c. 20 An Unofficial Consolidation Sections 7 - 44 |
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7. Application to court
(1) The court may, on the application of a spouse, former spouse or deceased spouse's personal representative, determine any matter respecting the spouses' entitlement under section 5.
Personal action; estates
(2) Entitlement under subsections 5Ý(1), (2) and (3) is personal as between the spouses but,
(a) an application based on subsection 5Ý(1) or (3) and commenced before a spouse's death may be continued by or against the deceased spouse's estate; and
(b) an application based on subsection 5Ý(2) may be made by or against a deceased spouse's estate.
Limitation
(3) An application based on subsection 5Ý(1) or (2) shall not be brought after the earliest of,
(a) two years after the day the marriage is terminated by divorce or judgment of nullity;
(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;
(c) six months after the first spouse's death. R.S.O. 1990, c.ÝF.3, s.Ý7.
8. Statement of property
In an application under section 7, each party shall serve on the other and file with the court, in the manner and form prescribed by the rules of the court, a statement verified by oath or statutory declaration disclosing particulars of,
(a) the party's property and debts and other liabilities,
(i) as of the date of the marriage,
(ii) as of the valuation date, and
(iii) as of the date of the statement;
(b) the deductions that the party claims under the definition of "net family property";
(c) the exclusions that the party claims under subsection 4Ý(2); and
(d) all property that the party disposed of during the two years immediately preceding the making of the statement, or during the marriage, whichever period is shorter. R.S.O. 1990, c.ÝF.3, s.Ý8.
9. Powers of court
(1) In an application under section 7, the court may order,
(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;
(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and
(d) that, if appropriate to satisfy an obligation imposed by the order,
(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or
(ii) any property be partitioned or sold.
Financial information, inspections
(2) The court may, at the time of making an order for instalment or delayed payments or on motion at a later time, order that the spouse who has the obligation to make payments shall,
(a) furnish the other spouse with specified financial information, which may include periodic financial statements; and(b) permit inspections of specified property of the spouse by or on behalf of the other spouse, as the court directs.
Variation
(3) If the court is satisfied that there has been a material change in the circumstances of the spouse who has the obligation to make instalment or delayed payments, the court may, on motion, vary the order, but shall not vary the amount to which the court found the spouse to be entitled under this Part.
Ten-year period
(4) Subsections (3) and 2Ý(8) (extension of times) do not permit the postponement of payment beyond the ten-year period mentioned in clause (1)Ý(c). R.S.O. 1990, c.ÝF.3, s.Ý9.
10. Determination of questions of title between spouses
(1) A person may apply to the court for the determination of a question between that person and his or her spouse or former spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties under section 5, and the court may,
(a) declare the ownership or right to possession;
(b) if the property has been disposed of, order payment in compensation for the interest of either party;
(c) order that the property be partitioned or sold for the purpose of realizing the interests in it; and
(d) order that either or both spouses give security, including a charge on property, for the performance of an obligation imposed by the order,
and may make ancillary orders or give ancillary directions.
Estates
(2) An application based on subsection (1) may be made by or continued against the estate of a deceased spouse. R.S.O. 1990, c.ÝF.3, s.Ý10.
11. Operating business or farm
(1) An order made under section 9 or 10 shall not be made so as to require or result in the sale of an operating business or farm or so as to seriously impair its operation, unless there is no reasonable alternative method of satisfying the award.
Idem
(2) To comply with subsection (1), the court may,
(a) order that one spouse pay to the other a share of the profits from the business or farm; and(b) if the business or farm is incorporated, order that one spouse transfer or have the corporation issue to the other shares in the corporation. R.S.O. 1990, c.ÝF.3, s.Ý11.
12. Orders for preservation
In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse's interests under this Part, the court may make an interim or final order,
(a) restraining the depletion of a spouse's property; and
(b) for the possession, delivering up, safekeeping and preservation of the property. R.S.O. 1990, c.ÝF.3, s.Ý12.
13. Variation and realization of security
If the court has ordered security or charged a property with security for the performance of an obligation under this Part, the court may, on motion,
(a) vary or discharge the order; or
(b) on notice to all persons having an interest in the property, direct its sale for the purpose of realizing the security or charge. R.S.O. 1990, c.ÝF.3, s.Ý13.
14. Presumptions
The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between husband and wife, as if they were not married, except that,
(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). R.S.O. 1990, c.ÝF.3, s.Ý14.
15. Conflict of laws
The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario. R.S.O. 1990, c.ÝF.3, s.Ý15.
16. Application of Part
(1) This Part applies to property owned by spouses,
(a) whether they were married before or after the 1st day of March, 1986; and
(b) whether the property was acquired before or after that day.
Application of s.Ý14
(2) Section 14 applies whether the event giving rise to the presumption occurred before or after the 1st day of March, 1986. R.S.O. 1990, c.ÝF.3, s.Ý16.
17. Definitions
In this Part,
"court" means a court as defined in subsection 1Ý(1) but does not include the Ontario Court (Provincial Division);
"property" means real or personal property. R.S.O. 1990, c.ÝF.3, s.Ý17.
18. Matrimonial home
(1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
Ownership of shares
(2) The ownership of a share or shares, or of an interest in a share or shares, of a corporation entitling the owner to occupy a housing unit owned by the corporation shall be deemed to be an interest in the unit for the purposes of subsection (1).
Residence on farmland, etc.
(3) If property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence. R.S.O. 1990, c.ÝF.3, s.Ý18.
19. Possession of matrimonial home
(1) Both spouses have an equal right to possession of a matrimonial home.
Idem
(2) When only one of the spouses has an interest in a matrimonial home, the other spouse's right of possession,
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise. R.S.O. 1990, c.ÝF.3, s.Ý19.
20. Designation of matrimonial home
(1) One or both spouses may designate property owned by one or both of them as a matrimonial home, in the form prescribed by the regulations made under this Act.
Contiguous property
(2) The designation may include property that is described in the designation and is contiguous to the matrimonial home.
Registration
(3) The designation may be registered in the proper land registry office.
Effect of designation by both spouses
(4) On the registration of a designation made by both spouses, any other property that is a matrimonial home under section 18 but is not designated by both spouses ceases to be a matrimonial home.
Effect of designation by one spouse
(5) On the registration of a designation made by one spouse only, any other property that is a matrimonial home under section 18 remains a matrimonial home.
Cancellation of designation
(6) The designation of a matrimonial home is cancelled, and the property ceases to be a matrimonial home, on the registration or deposit of,
(a) a cancellation, executed by the person or persons who made the original designation, in the form prescribed by the regulations made under this Act;
(b) a decree absolute of divorce or judgment of nullity;
(c) an order under clause 23Ý(e) cancelling the designation; or
(d) proof of death of one of the spouses.
Revival of other matrimonial homes
(7) When a designation of a matrimonial home made by both spouses is cancelled, section 18 applies again in respect of other property that is a matrimonial home. R.S.O. 1990, c.ÝF.3, s.Ý20.
21. Alienation of matrimonial home
(1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled.
Setting aside transaction
(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home.
Proof that property not a matrimonial home
(3) For the purpose of subsection (2), a statement by the person making the disposition or encumbrance,
(a) verifying that he or she is not, or was not, a spouse at the time of the disposition or encumbrance;
(b) verifying that the person is a spouse who is not separated from his or her spouse and that the property is not ordinarily occupied by the spouses as their family residence;
(c) verifying that the person is a spouse who is separated from his or her spouse and that the property was not ordinarily occupied by the spouses, at the time of their separation, as their family residence;
(d) where the property is not designated by both spouses as a matrimonial home, verifying that a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled; or
(e) verifying that the other spouse has released all rights under this Part by a separation agreement,
shall, unless the person to whom the disposition or encumbrance is made had notice to the contrary, be deemed to be sufficient proof that the property is not a matrimonial home.
Idem, attorney's personal knowledge
(4) The statement shall be deemed to be sufficient proof that the property is not a matrimonial home if it is made by the attorney of the person making the disposition or encumbrance, on the basis of the attorney's personal knowledge.
Liens arising by operation of law
(5) This section does not apply to the acquisition of an interest in property by operation of law or to the acquisition of a lien under section 18 of the Legal Aid Act. R.S.O. 1990, c.ÝF.3, s.Ý21.
22. Right of redemption and to notice
(1) When a person proceeds to realize upon a lien, encumbrance or execution or exercises a forfeiture against property that is a matrimonial home, the spouse who has a right of possession under section 19 has the same right of redemption or relief against forfeiture as the other spouse and is entitled to the same notice respecting the claim and its enforcement or realization.
Service of notice
(2) A notice to which a spouse is entitled under subsection (1) shall be deemed to be sufficiently given if served or given personally or by registered mail addressed to the spouse at his or her usual or last known address or, if none, the address of the matrimonial home, and, if notice is served or given by mail, the service shall be deemed to have been made on the fifth day after the day of mailing. R.S.O. 1990, c.ÝF.3, s.Ý22 (1,Ý2).
Idem: power of sale
(3) When a person exercises a power of sale against property that is a matrimonial home, sections 33 and 34 of the Mortgages Act apply and subsection (2) does not apply. R.S.O. 1990, c.ÝF.3, s.Ý22Ý(3); 1993, c.Ý27, Sched.
Payments by spouse
(4) If a spouse makes a payment in exercise of the right conferred by subsection (1), the payment shall be applied in satisfaction of the claim giving rise to the lien, encumbrance, execution or forfeiture. R.S.O. 1990, c.ÝF.3, s.Ý22Ý(4).
Realization may continue in spouse's absence
(5) Despite any other Act, when a person who proceeds to realize upon a lien, encumbrance or execution or exercises a forfeiture does not have sufficient particulars of a spouse for the purpose and there is no response to a notice given under subsection (2) or under section 33 of the Mortgages Act, the realization or exercise of forfeiture may continue in the absence and without regard to the interest of the spouse and the spouse's rights under this section end on the completion of the realization or forfeiture. R.S.O. 1990, c.ÝF.3, s.Ý22Ý(5); 1993, c.Ý27, Sched.
23. Powers of court respecting alienation
The court may, on the application of a spouse or person having an interest in property, by order,
(a) determine whether or not the property is a matrimonial home and, if so, its extent;(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent,
subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;
(c) dispense with a notice required to be given under section 22;
(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21Ý(1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and
(e) cancel a designation made under section 20 if the property is not a matrimonial home. R.S.O. 1990, c.ÝF.3, s.Ý23.
24. Order for possession of matrimonial home
(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse's right of possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse's interest in the matrimonial home, subject to the other spouse's right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21Ý(3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,
to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate.
Temporary or interim order
(2) The court may, on motion, make a temporary or interim order under clause (1)Ý(a), (b), (c), (d) or (e).
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child's views and preferences, if they can reasonably be ascertained.
Offence
(5) A person who contravenes an order for exclusive possession is guilty of an offence and upon conviction is liable,
(a) in the case of a first offence, to a fine of not more than $5,000 or to imprisonment for a term of not more than three months, or to both; and
(b) in the case of a second or subsequent offence, to a fine of not more than $10,000 or to imprisonment for a term of not more than two years, or to both.
Arrest without warrant
(6) A police officer may arrest without warrant a person the police officer believes on reasonable and probable grounds to have contravened an order for exclusive possession.
Existing orders
(7) Subsections (5) and (6) also apply in respect of contraventions, committed on or after the 1st day of March, 1986, of orders for exclusive possession made under Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c.ÝF.3, s.Ý24.
25. Variation of possessory order
(1) On the application of a person named in an order made under clause 24Ý(1)Ý(a), (b), (c), (d) or (e) or his or her personal representative, if the court is satisfied that there has been a material change in circumstances, the court may discharge, vary or suspend the order.
Variation of conditions of sale
(2) On the motion of a person who is subject to conditions imposed in an order made under clause 23Ý(b) or (d) or 24Ý(1)Ý(g), or his or her personal representative, if the court is satisfied that the conditions are no longer appropriate, the court may discharge, vary or suspend them.
Existing orders
(3) Subsections (1) and (2) also apply to orders made under the corresponding provisions of Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c.ÝF.3, s.Ý25.
26. Joint tenancy in matrimonial home
(1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.
Sixty-day period after spouse's death
(2) Despite clauses 19Ý(2)Ý(a) and (b) (termination of spouse's right of possession), a spouse who has no interest in a matrimonial home but is occupying it at the time of the other spouse's death, whether under an order for exclusive possession or otherwise, is entitled to retain possession against the spouse's estate, rent free, for sixty days after the spouse's death. R.S.O. 1990, c.ÝF.3, s.Ý26.
27. Registration of order
Orders made under this Part or under Part III of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980 are registrable against land under the Registry Act and the Land Titles Act. R.S.O. 1990, c.ÝF.3, s.Ý27.
28. Application of Part
(1) This Part applies to matrimonial homes that are situated in Ontario.
Idem
(2) This Part applies,
(a) whether the spouses were married before or after the 1st day of March, 1986; and
(b) whether the matrimonial home was acquired before or after that day. R.S.O. 1990, c.ÝF.3, s.Ý28.
29. Definitions
In this Part,
"dependant" means a person to whom another has an obligation to provide support under this Part;
"spouse" means a spouse as defined in subsection 1Ý(1), and in addition includes either of a man and woman who are not married to each other and have cohabited,
R.S.O. 1990, c.ÝF.3, s.Ý29.(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.
30. Obligation of spouses for support
Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. R.S.O. 1990, c.ÝF.3, s.Ý30.
31. Obligation of parent to support child
(1) Every parent has an obligation to provide support [DELETE:, in accordance with need,] for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.
Idem
(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c.ÝF.3, s.Ý31.
32. Obligation of child to support parent
Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so. R.S.O. 1990, c.ÝF.3, s.Ý32.
33. Order for support
(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.
Applicants
(2) An application for an order for the support of a dependant may be made by the dependant or the dependant's parent.
Idem
(3) An application for an order for the support of a dependant who is the respondent's spouse or child may also be made by one of the following agencies:
(a) the Ministry of Community and Social Services in the name of the Minister;
(b) a municipal corporation, including a metropolitan, district or regional municipality, but not including an area municipality;
(c) a district welfare administration board under the District Welfare Administration Boards Act; or
(d) a band approved under section 15 of the General Welfare Assistance Act,
if the agency is providing or has provided a benefit under the Family Benefits Act or assistance under the General Welfare Assistance Act in respect of the dependant's support, or if an application for such a benefit or assistance has been made to the agency by or on behalf of the dependant.
Setting aside domestic contract
(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection (1) although the contract or agreement contains an express provision excluding the application of this section,
(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;
(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or
(c) if there is default in the payment of support under the contract or agreement at the time the application is made.
Adding party
(5) In an application the court may, on a respondent's motion, add as a party another person who may have an obligation to provide support to the same dependant.
Idem
(6) In an action in the Ontario Court (General Division), the defendant may add as a third party another person who may have an obligation to provide support to the same dependant.
Purposes of order for support of child
(7) An order for the support of a child should,
(a) recognize that each parent has an obligation to provide support for the child;
[Note: Subsections (b) and (c) have been repealed and replaced with a new s. (b)]
[ (b) recognize that the obligation of a natural or adoptive parent outweighs the obligation of a parent who is not a natural or adoptive parent; and(c) apportion the obligation according to the capacities of the parents to provide support.]
(b) apportion the obligation according to the child support guidelines.
Purposes of order for support of spouse
(8) An order for the support of a spouse should,
(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;(b) share the economic burden of child support equitably;
(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).
Determination of amount
(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,
(a) the dependant's and respondent's current assets and means;
(b) the assets and means that the dependant and respondent are likely to have in the future;
(c) the dependant's capacity to contribute to his or her own support;
(d) the respondent's capacity to provide support;
(e) the dependant's and respondent's age and physical and mental health;
(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to provide support for another person;
(i) the desirability of the dependant or respondent remaining at home to care for a child;
(j) a contribution by the dependant to the realization of the respondent's career potential;
[NOTE: Subsection 33(9)(k) has been repealed.]
[(k) if the dependant is a child,(i) the child's aptitude for and reasonable prospects of obtaining an education, and
(ii) the child's need for a stable environment;]
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,
(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other than out of public money.
Conduct
(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship. R.S.O. 1990, c.ÝF.3, s.Ý33.
Application of child support guidelines (11) A court making an order for the support of a child shall do so in accordance with the child support guidelines. Exception: special provisions (12) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.Reasons (13) Where the court awards, under subsection (12), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so. Exception: consent orders (14) Despite subsection (11), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,
(a) reasonable arrangements have been made for the support of the child to whom the order relates; and (b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.Reasonable arrangements (15) For the purposes of clause (14)(a), in determining whether reasonable arrangements have been made for the support of a child,
(a) the court shall have regard to the child support guidelines; and (b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.
34. Powers of court
(1) In an application under section 33, the court may make an interim or final order,
(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;
(b) requiring that a lump sum be paid or held in trust;
(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;
(d) respecting any matter authorized to be ordered under clause 24Ý(1)Ý(a), (b), (c), (d) or (e) (matrimonial home);
(e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant's benefit;
(f) requiring that support be paid in respect of any period before the date of the order;
(g) requiring payment to an agency referred to in subsection 33Ý(3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order;
(h) requiring payment of expenses in respect of a child's prenatal care and birth;
(i) requiring that a spouse who has a policy of life insurance as defined in the Insurance Act designate the other spouse or a child as the beneficiary irrevocably;
(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and
(k) requiring the securing of payment under the order, by a charge on property or otherwise.
Limitation on jurisdiction of Ontario Court (Provincial Division)
(2) The Ontario Court (Provincial Division) shall not make an order under clause (1)Ý(b), (c), (i), (j) or (k) except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge, and shall not make an order under clause (d).
Assignment of support
(3) An order for support may be assigned to an agency referred to in subsection 33Ý(3).
Same
(3.1) An agency referred to in subsection 33(3) to whom an order for support is assigned is entitled to the payments due under the order and has the same right to be notified of and to participate in proceedings under this Act to vary, rescind, suspend or enforce the order as the person who would otherwise be entitled to the payments.Support order binds estate
(4) An order for support binds the estate of the person having the support obligation unless the order provides otherwise.
Indexing of support payments
(5) An an order made under clause (1)Ý(a), other than an order for the support of a child the court may provide that the amount payable shall be increased annually on the order's anniversary date by the indexing factor, as defined in subsection (6), for November of the previous year.
Definition
(6) The indexing factor for a given month is the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada. R.S.O. 1990, c.ÝF.3, s.Ý34.
35. Domestic contract, etc., may be filed with court
(1) A person who is a party to a domestic contract or paternity agreement may file the contract or agreement with the clerk of the Ontario Court (Provincial Division) or of the Unified Family Court together with the person's affidavit stating that the contract or agreement is in effect and has not been set aside or varied by a court or agreement.
[Note: Subsection 35(2) has been repealed and replaced.]
[Effect of filing(2) A provision for support or maintenance contained in a contract or agreement that is filed in this manner,
(a) may be enforced; and
(b) may be varied under section 37 and increased under section 38,
as if it were an order of the court where it is filed.]
Effect of filing (2) A provision for support or maintenance contained in a contract or agreement that is filed in this manner,(a) may be enforced; (b) may be varied under section 37; and (c) except in the case of a provision for the support of a child, may be increased under section 38,as if it were an order of the court where it is filed.
Setting aside available
(3) Subsection 33Ý(4) (setting aside in unconscionable circumstances, etc.) applies to a contract or agreement that is filed in this manner.
Enforcement available despite waiver
(4) Subsection (1) and clause (2)Ý(a) apply despite an agreement to the contrary.
Existing contracts, etc.
(5) Subsections (1) and (2) also apply to contracts and agreements made before the 1st day of March, 1986.
Existing arrears
(6) Clause (2)Ý(a) also applies to arrears accrued before the 1st day of March, 1986. R.S.O. 1990, c.ÝF.3, s.Ý35.
36. Effect of divorce proceeding
(1) When a divorce proceeding is commenced under the Divorce Act (Canada), an application for support under this Part that has not been adjudicated is stayed, unless the court orders otherwise.
Arrears may be included in order
(2) The court that deals with a divorce proceeding under the Divorce Act (Canada) may determine the amount of arrears owing under an order for support made under this Part and make an order respecting that amount at the same time as it makes an order under the Divorce Act (Canada).
Idem
(3) If a marriage is terminated by divorce or judgment of nullity and the question of support is not adjudicated in the divorce or nullity proceedings, an order for support made under this Part continues in force according to its terms. R.S.O. 1990, c.ÝF.3, s.Ý36.
37. Application for variation
[Note: Subsections 37(1) and (2) have been repealed and replaced.]
[(1) A dependant or respondent named in an order made or confirmed under this Part, the respondent's personal representative, or an agency referred to in subsection 33Ý(3), may apply to the court for variation of the order.Powers of court
(2) If the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may discharge, vary or suspend a term of the order, prospectively or retroactively, relieve the respondent from the payment of part or all of the arrears or any interest due on them and make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.]
(1) An application to the court for variation of an order made or confirmed under this Part may be made by,(a) a dependant or respondent named in the order; (b) a parent of a dependant referred to in clause (a); (c) the personal representative of a respondent referred to in clause (a); or (d) an agency referred to in subsection 33(3).Powers of court: spouse and parent support (2) In the case of an order for support of a spouse or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively; (b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.Powers of court: child support (2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively; (b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (c) make any other order for the support of a child that the court could make on an application under section 33.Application of child support guidelines (2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. Exception: special provisions (2.3) Despite subsection (2.2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines if the court is satisfied,
(a) that special provisions in an order or a written agreement respecting the financial obligations of the parents, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and (b) that the application of the child support guidelines would result in an amount of child support that is inequitable given those special provisions.Reasons (2.4) Where the court awards, under subsection (2.3), an amount that is different from the amount that would be determined in accordance with the child support guidelines, the court shall record its reasons for doing so. Exception: consent orders (2.5) Despite subsection (2.2), a court may award an amount that is different from the amount that would be determined in accordance with the child support guidelines on the consent of both parents if the court is satisfied that,
(a) reasonable arrangements have been made for the support of the child to whom the order relates; and (b) where support for the child is payable out of public money, the arrangements do not provide for an amount less than the amount that would be determined in accordance with the child support guidelines.Reasonable arrangements (2.6) For the purposes of clause (2.5)(a), in determining whether reasonable arrangements have been made for the support of a child,
(a) the court shall have regard to the child support guidelines; and (b) the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the child support guidelines.
(3) Limitation on applications for variation
No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court. R.S.O. 1990, c.ÝF.3, s.Ý37.
38. Non-application to orders for child support
(1) This section does not apply to an order for the support of a child.Application to have existing order indexed
(2) If an order made or confirmed under this Part is not indexed under subsection 34Ý(5), the dependant, or an agency referred to in subsection 33Ý(3), may apply to the court to have the order indexed in accordance with subsection 34Ý(5).
Power of court
(3) The court shall, unless the respondent shows that his or her income, assets and means have not increased sufficiently to permit the increase, order that the amount payable be increased by the indexing factor, as defined in subsection 34Ý(6), for November of the year before the year in which the application is made and be increased in the same way annually thereafter on the anniversary date of the order under this section. R.S.O. 1990, c.ÝF.3, s.Ý38.
39. Existing orders
(1) Sections 36 to 38 also apply to orders for maintenance or alimony made before the 31st day of March, 1978 or in proceedings commenced before the 31st day of March, 1978 and to orders for support made under Part II of the Family Law Reform Act, being chapter 152 of the Revised Statutes of Ontario, 1980. R.S.O. 1990, c.ÝF.3, s.Ý39.
Combined support orders (2) Where an application is made under section 37 to vary an order that provides a single amount of money for the combined support of one or more children and a spouse, the court shall rescind the order and treat the application as an application for an order for the support of a child and an application for an order for the support of a spouse. Existing proceedings (3) Where an application for the support of a child, including an application under section 37 to vary an order for the support of a child, is made before the day the Uniform Federal and Provincial Child Support Guidelines Act, 1997 comes into force and the court has not considered any evidence in the application, other than in respect of an interim order, before that day, the proceeding shall be deemed to be an application under the Family Law Act as amended by the Uniform Federal and Provincial Child Support Guidelines Act, 1997, subject to such directions as the court considers appropriate.40. Restraining orders
The court may, on application, make an interim or final order restraining the depletion of a spouse's property that would impair or defeat a claim under this Part. R.S.O. 1990, c.ÝF.3, s.Ý40.
41. Financial statement
In an application under section 33 or 37, each party shall serve on the other and file with the court a financial statement verified by oath or statutory declaration in the manner and form prescribed by the rules of the court. R.S.O. 1990, c.ÝF.3, s.Ý41.
42. Order for return by employer
(1) In an application under section 33 or 37, the court may order the employer of a party to the application to make a written return to the court showing the party's wages or other remuneration during the preceding twelve months.
Return as evidence
(2) A return purporting to be signed by the employer may be received in evidence as proof, in the absence of evidence to the contrary, of its contents.
Order for access to information
(3) The court may, on motion, make an order under subsection (4) if it appears to the court that, in order to make an application under section 33 or 37, the moving party needs to learn or confirm the proposed respondent's whereabouts.
Idem
(4) The order shall require the person or public body to whom it is directed to provide the court or the moving party with any information that is shown on a record in the person's or public body's possession or control and that indicates the proposed respondent's place of employment, address or location.
Crown bound
(5) This section binds the Crown in right of Ontario. R.S.O. 1990, c.ÝF.3, s.Ý42.
43. Arrest of absconding debtor
(1) If an application is made under section 33 or 37 and the court is satisfied that the respondent is about to leave Ontario and that there are reasonable grounds for believing that the respondent intends to evade his or her responsibilities under this Act, the court may issue a warrant for the respondent's arrest for the purpose of bringing him or her before the court.
Bail
(2) Section 150 (interim release by justice of the peace) of the Provincial Offences Act applies with necessary modifications to an arrest under the warrant. R.S.O. 1990, c.ÝF.3, s.Ý43.
44. Provisional orders
(1) In an application under section 33 or 37 in the Ontario Court (Provincial Division) or the Unified Family Court, the court shall proceed under this section, whether or not the respondent in the application files a financial statement, if,
(a) the respondent fails to appear;(b) it appears to the court that the respondent resides in a locality in Ontario that is more than 150 kilometres away from the place where the court sits; and
(c) the court is of the opinion, in the circumstances of the case, that the issues can be adequately determined by proceeding under this section.
Idem
(2) If the court determines that it would be proper to make a final order, were it not for the respondent's failure to appear, the court shall make an order for support that is provisional only and has no effect until it is confirmed by the Ontario Court (Provincial Division) or the Unified Family Court sitting nearest the place where the respondent resides.
Transmission for hearing
(3) The court that makes a provisional order shall send to the court in the locality in which the respondent resides copies of such documents and records, certified in such manner, as are prescribed by the rules of the court.
Show cause
(4) The court to which the documents and records are sent shall cause them to be served upon the respondent, together with a notice to file with the court the financial statement required by section 41, and to appear and show cause why the provisional order should not be confirmed.
Confirmation of order
(5) At the hearing, the respondent may raise any defence that might have been raised in the original proceeding, but if the respondent fails to satisfy the court that the order ought not to be confirmed, the court may confirm the order without variation or with the variation that the court considers proper having regard to all the evidence.
Adjournment for further evidence
(6) If the respondent appears before the court and satisfies the court that for the purpose of a defence or for the taking of further evidence or otherwise it is necessary to remit the case to the court where the applicant resides, the court may remit the case and adjourn the proceeding for that purpose.
Where order not confirmed
(7) If the respondent appears before the court and the court, having regard to all the evidence, is of the opinion that the order ought not to be confirmed, the court shall remit the case to the court sitting where the order was made with a statement of the reasons for doing so, and the court sitting where the order was made shall dispose of the application in accordance with the statement.
Certificates as evidence
(8) A certificate certifying copies of documents or records for the purpose of this section and purporting to be signed by the clerk of the court is, without proof of the clerk's office or signature, admissible in evidence in a court to which it is transmitted under this section as proof, in the absence of evidence to the contrary, of the copy's authenticity.
Right of appeal
(9) No appeal lies from a provisional order made under this section, but a person bound by an order confirmed under this section has the same right of appeal as he or she would have had if the order had been made under section 34. R.S.O. 1990, c.ÝF.3, s.Ý44.
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