Am I in the Wrong Ontario Family Court to Get A Divorce?


Ontario has three Family Courts.  Some municipalities, which are listed in Rule 1(3) of the Ontario Family Law Rules, have a Family Court of the Ontario Superior Court of Justice.  That court hears all Family Law matters.   However, the rest of the province has two separate courts that deal with Family Law Matters:  the Ontario Court of Justice and the Ontario Superior Court of Justice.  These two courts do different things and operate a little differently, although all Ontario Courts apply the Family Law Rules (except for appeals). Only the Superior Court of Justice can grant divorces, decide property matters, or make orders that an asset by held as security for a debt (including support arrears).   If you want to do any of those things (and most separating married couples do), then you must start your proceedings in the Ontario Superior Court of Justice.

Ontario Family Law Podcast - Episode 23 - Why You Need a Last Will and Testament

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

However, if you are in the Ontario Court of Justice and you want to deal with the divorce or property issues, it is not a matter of transferring your case.

If you want a divorce, then the Court granting the divorce will make custody and access orders  under s. 16 of the Divorce ActDivorce Acts. 15.1 of the , child support orders under , and spousal support orders under s. 15.2 of the Divorce Act.  Due to some complicated constitutional reasons, Divorce Act Orders supersede orders made under Ontario's Family Law ActChildren's Law Reform Act and , which are the statutes that the Ontario Court of Justice uses (as it cannot make Divorce Orders.)  For that reason, section 36 of the Family Law Act and section 27 of the Child and Family Services Act both state that any proceedings under those laws (meaning proceedings in the Ontario Court of Justice) are stayed if one of the parties starts a divorce proceeding.

So, what that means is that if you start a Divorce proceeding in the Ontario Superior Court of Justice, the court proceedings in the Ontario Court of Justice stop automatically.   The Judges at the Superior Court of Justice will want to hear what the judges said in the Ontario Court of Justice, and will likely re-make the same orders (as long as they were not successfully appealed).  But, that is something you will have to address, probably at the case conference.  

But, be warned: If you are moving the case just because you do not like what the judges are saying in the Ontario Court of Justice, this case illustrates that you could get punished by an order to pay your spouse's costs (legal fees) for moving the case for an improper reason

Guide to the Basics of Ontario Family Law, 3rd Edition

You can learn a bit more about the family court process by watching the video above or listening to these podcasts (iTunes version here).  You can get a lot more information about Ontario Family Law issues, including a further explanation of family court process by downloading this $9.99 e-book for KindleKobo, or iPad/iPhone/Mac or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a top family law lawyer.
   Make an appointment with Certified Specialist in Family Law, John Schuman, by calling 416-446-5847, emailing him, or using the form below.  You can also use that form to comment on this page.If you found this page helpful, please share it on tour social network using the buttons at the bottom of the page.

Guide to the Basics of Ontario Family Law Available on Kindle

© John P. Schuman 2014