a resource for Christian women and church leaders
on abuse and family law issues
Table of Contents
• Abuse .................................................................................................................4
• What are the Different Types of Abuse? ......................................................4
• Family Breakdown ...........................................................................................6
• Changes to Family Law ...................................................................................7
For Women: Legal Information .............................................................9
• The Basics .........................................................................................................9
• Getting Help from the Law to Deal with Abuse .......................................10
• Finding a Lawyer ............................................................................................14
• Marriage and Divorce ....................................................................................16
• What are Domestic Contracts? ....................................................................19
• Custody and Access .......................................................................................21
• Child and Spousal Support ..........................................................................27
• How Property is Divided in Family Law ....................................................34
• Alternative Dispute Resolution ....................................................................36
• More on Family Law Arbitration .................................................................40
• Child Protection and Family Law ................................................................43
• Family Law Issues for Immigrant, Refugee,
and Non-Status Women ................................................................................46
For Women and Leaders: Resources ................................................50
• Leaders Opening the Dialogue ....................................................................50
• How You Can Respond as an Individual.....................................................51
• Community Help for Ontario Women .......................................................53
This handbook could not have been created without the support of
Christian women who participated in several focus groups and surveys.
METRAC is thankful for their time and energies, and for sharing their
needs and ideas with us. We thank the organizations, churches, and church
leaders who helped us create this handbook by writing letters of support,
providing valuable feedback, and opening up church space for focus
groups. This includes Applecreek Seventh Day Adventist Church (Carrol
Daly-Thom and Estrianna Kelly) and Black Creek Community Health
Centre (Jackeline Barragan), amongst others.
METRAC is grateful to the Ontario Government for providing the
funding to the Family Law Education for Women (FLEW) Project, which
has enabled us to produce this handbook. Great thanks are also extended
to members of the management committee of the FLEW Project for
their substantive work in developing the legal documents adapted by
METRAC in the creation of this resource.
We acknowledge the contributions of METRAC staff, Andrea Gunraj and
Wendy Komiotis, in working collaboratively on this project, from the
beginning to end, and we thank Zahra Dhanani who later joined the
project and helped bring it to successful completion. Claudette Clarke also
deserves special praise for conducting outreach and running focus groups
and consultations with Christian faith communities.
This handbook is for women who are involved in Christian communities.
It is also for church leaders. Leaders can be pastors and elders; deacons;
church board members; ministry leaders (e.g. children and youth
ministries, women’s ministries, men’s ministries); Sunday school teachers;
and small group leaders.
This handbook provides information on how Ontario’s family law can
affect women and children in situations of family breakdown, especially in
the case of women who have faced or are facing abuse at home. It
provides definitions of abuse as well as resources on how to address it.
We created this handbook in close consultation with church leaders and
Christian women. A lot of the material was actually written by a Christian
woman who is a ministry leader at her church. It’s designed to give an
accurate picture of the law and the different forms of abuse we need to
be aware of.
Family law covers many legal issues, some of which may not always match
Christian perspectives on relationships and family dynamics. But in order
to provide as much relevant information as possible, those laws and an
analysis of how they can affect women have been included in this
handbook. Our hope is that the information will help you support sister
church members in difficult circumstances.
Love must be sincere. Hate what is evil; cling to what is good. (Romans 12:9)
Most of us know women who have been abused. Canadian statistics show
that one-half (50%) of women experience sexual or physical violence in
their lifetimes (Statistics Canada, 1993). Although anyone can be abused,
victims of domestic violence are most often women and girls, and the
violence is most often done by men they know and trust (Statistics
Canada, 2006). Research shows that children often see the abuse
happening and it can have a negative impact on them, and as a result,
they’re more likely to get into abusive relationships when they grow up.
Violence should never happen in Christian homes, but unfortunately, it
sometimes does. Women facing abuse may come to us for help because
they trust and respect us and because we’re part of the same church
family. We all have weighty spiritual and interpersonal responsibilities,
particularly those of us in leadership positions. Research shows that
women most often go to people they know and trust to talk about abuse,
instead of going to the police or community services. That’s why we
should know what the law says about abuse, how women can get help, and
how we can support women and children going through difficult times in
a godly, well-informed manner.
In a survey of 37 women in Christian communities, “fear” was the top answer for what
would cause them not to report an abusive spouse - fear of retribution, embarrassment,
being disbelieved, deportation, and/or losing their children.
What Are the Different Types of Abuse?
Before learning about the details of family law, it’s important to know
what violence against women and girls looks like. Many forms of this
violence are against the law, including physical assault, sexual assault, and
stalking (called “criminal harassment” in criminal law).
Stalking/Criminal Harassment: repeated behaviour that scares a
woman in person or online, including watching and following her; sending
her gifts she does not want; damaging her property; unwanted contact;
sending unwanted messages, either on voice mail, email, or through other
people; and/or threatening her or her family. If a woman is being stalked,
she should keep a journal of the dates, times, and details of the contact
she has had with the stalker, especially if she eventually decides to seek
help from the legal system.
Physical abuse: someone hitting, pushing, kicking, choking, pulling hair,
or biting; holding her down; not taking care of her when she depends on
others; forcing her to take drugs or drink; threatening to hurt her kids (if
this happens, the law says she must contact her local Children’s Aid
Society); and/or threatening to hurt her service animal (e.g. seeing-eye
dog). It’s important to note that, contrary to common thinking, a woman
is at a higher risk of being murdered by her husband or partner upon
Sexual abuse: any unwanted sexual activity, such as forced kissing,
touching, or rape; threatening or manipulating a woman to make her do
sexual things against her will; incest (sexual abuse of children in families);
and/or forcing her to watch sexual acts or images.
Financial abuse: stopping her from getting money so she’ll be
dependent on others; not letting her get or keep a job; harassing her at
work; forcing her to miss work; taking her money away; and/or forcing
her to pay all the bills.
Spiritual abuse: disrespecting her beliefs or religion; stopping her from
practicing her beliefs; and/or pushing or forcing her to do things that
aren’t a part of her beliefs.
Emotional abuse: criticizing, insulting, or making fun of her; making her
feel worthless; treating her badly; bullying and ignoring her; isolating her
from her friends and family; threatening to tell her secrets; posting
pictures of her on the internet to hurt her; and/or manipulating her to get
what he wants or to do things against her will.
Violence against women and girls is a big problem in many places around
the world, including Canada. It’s complicated, but in the end, it happens
because women and girls don’t always get the respect they deserve. Men
who abuse women and girls often feel they have a right to control and
exert power over them. Laws, policies, and practices don’t always help the
situation - sometimes, they can make things worse.
Violence impacts women differently, depending on who they are. For
example, girls and young women are most at risk of murder, stalking, and
sexual assault because of their age (Johnson, 1996). Women living with
disabilities are at an incredibly high risk of being sexually abused, and
women of colour may have less access to justice because of racist
stereotypes about them in the legal system (Stimpson and Best, 1991;
Canadian Research Institute for the Advancement of Women, 2002). As
you can probably guess, women living in poverty are also more vulnerable
because they don’t have money to get the help and resources they need in
violent situations, such as housing and food for themselves and their
children (Jiwani, 2002). Most of us are part of very diverse congregations
so we have to be aware of these realities.
Ella has been married to Jason for 15 years. They have 2 children. Sometimes Jason
comes home drunk - no one at church knows he has a drinking problem. Ella tries to
keep the children away, but he yells and hits her in front of them. Lately, Ella noticed
that a lot of money is missing from their bank account. Jason won’t tell her where the
money is going and she’s afraid they won’t have enough to pay the bills this month. At
the Bible study meeting, Ella pulls you aside and tells you what’s been happening at
home. This is the first time she has told anyone. She’s upset and is looking to you for
help and guidance.
Family law is especially relevant in cases of family breakdown. This can
• situations of divorce or separation;
• situations where abusers go into custody or jail; and
• situations where children are removed from homes by Children’s Aid
These issues can get very complicated for Christians. Most of us believe
in the importance of family, marriage, respect, and unity in the home. For
those of us who are leaders, we’re called to guide people in a direction that
will encourage them to create healthy, God-honouring relationships. But
things don’t always work out the way they should. Christian women can
find themselves in situations of family breakdown, even if they never
expected or wanted to be there, and women who may not share our values
or faith can still be involved in our church communities. In these
circumstances, we may be asked questions that are related to family law, as
well as spiritual and Biblical questions. Many women, Christian or not,
may be inclined to listen to what we say on these matters because they
respect our beliefs and/or our position as church leaders. As we seek to
lead and support women in different circumstances, we need to know
what the Bible says and what the law says, because these matters can
deeply affect church goers and members of our church. We should never
claim to give legal advice, but we should know some basic information
so we’ll be well-informed when people ask us questions.
Tanisha enters the church office one morning. Last night, her husband told her that he
wants a divorce immediately. She knew they had problems, but they were getting
marriage counseling from you and she thought it would work out. Although Tanisha’s
husband told her that he already has a lawyer, she won’t consider getting a lawyer herself
- she’s afraid that everyone will find out. But she’s especially distressed because her
husband told her that he’s going to argue for full custody of their son. Tanisha says,
“He told me that he doesn’t care what the Bible says about divorce. Can he really take
our son away from me?”
Changes to Family Law
Recent changes to Ontario family law were made in 2007. New rules were
created for family law arbitration, a process that couples can use to
resolve legal issues during family breakdown, such as child custody and
property division, without going to the courts. During arbitration, the
couple chooses someone to listen to their arguments and evidence. The
arbitrator then makes a decision to resolve the legal issues.
Under the new changes, it was decided that all family law arbitrations
should follow Canadian law. This means that arbitration that uses other
rules that may conflict with the law, such as religious or cultural rules, isn’t
legal anymore. These changes to family law are important because
sometimes, women would get hurt in religious arbitration processes,
especially if they were in an abusive home and their abusers used the
arbitration process to make things more difficult for them. Sometimes,
they would get hurt because the person doing the arbitration didn’t know
about the abuse or even sided with the abuser.
The law also now says that all arbitrators who are not lawyers have to go
through training about family law issues and domestic violence. This
includes church ministers and any other religious leaders who might have
been doing arbitrations in the past - if they don’t get training, their
arbitrations are not legally binding.
But many women and church leaders don’t know about these changes to
the law. Many of us don’t know that much about family law in general,
because it can be very confusing.
49% of surveyed Christian women believed that their church leaders or pastors would
be able to help them with family law issues or provide direction, to some degree.
For Women: Legal Information
May the Lord make your love increase and overflow for each other and for
everyone else, just as ours does for you. (1 Thessalonians 3:12)
This section covers many key elements of family-related laws and how
they may affect women and children. It can be a personal legal
information resource and a tool to assist you where you’re supporting
women who are going through difficult family issues.
It’s understandable that you might not feel comfortable with everything
covered in this section. Many Christians don’t believe in things like
divorce, common-law relationships, and pre-nuptial agreements, and
Christian leaders don’t usually encourage them. But if you’re ever asked to
speak to these things in a legal sense, it can help to know what the law
requires and how women can get proper legal assistance. This basic
information may also help you if a woman is thinking about escaping
from an abusive relationship and asking you questions about her legal
Again, the information below isn’t easy to deal with, and it doesn’t
prepare you to give legal advice to anyone. It’s just legal information.
It’s important that women seeking support know this and don’t expect
you to give legal advice as they would get from a family law lawyer.
Aisha is a new Christian and has recently joined your church. She also recently broke
up with her live-in boyfriend and is living on her own. But she confides in you that she’s
concerned because her ex-boyfriend was abusive when they were together. Now he’s
following her to work and leaving threatening messages on her cell phone. She is afraid
for her safety and the safety of her daughter. She’s nervous that her ex-boyfriend will
try to use the co-habitation agreement they had signed when they first moved in together
to get back at her.
Getting Help from the Law to Deal with Abuse
Stalking, sexual assault, and physical assault are covered under criminal
law. A woman has a few legal choices if she’s experienced these forms of
abuse, but none of the options are easy and none are sure to work. Here
are three ways that family law can help a woman and her children find
safety if her partner or ex-partner is physically and/or sexually abusing her
and/or stalking her.
1. Get a Family Court Order
If a woman is being threatened or abused, she can apply to the family
court for a restraining order or for an order for exclusive possession of
her family home whether or not criminal charges have been laid.
She can apply for a restraining order against her abusive spouse, common-
law partner, former spouse, or former partner. A restraining order can tell
the abuser not to contact or try to contact the woman or her family. It can
tell him to stay away from her, and can say how far away he must be at all
How long does it take?
It can take months to get a restraining order because there are so many
cases in family court. If the judge believes that a woman has good reason
to be afraid, the restraining order will be granted against the abuser. The
order may be for a set period of time, or it may continue indefinitely
depending on the circumstances.
What to do in an emergency
If a woman or her children are at very high risk of being hurt in the
immediate future, she can apply for an order on an ex parte basis. This
means that she’s asking the judge to give a restraining order without
hearing what the abusive partner has to say. It is difficult to get this kind
of order and it will usually only be effective for a short time.
What happens if the abuser does not obey the order?
Breaching a restraining order is a provincial offence, which is not seen as
serious as a criminal offence. If an abuser violates the order and the
woman wants him to be charged, she will have to report him to the police
who will conduct an investigation.
Exclusive possession of the family home
If a woman and her partner are married, she can also apply to family court
for an order giving her exclusive possession of the matrimonial home.
This means that her spouse can’t come on to the property whether she
owns or rents it and that she can change the locks. If she’s a tenant, she
should speak with her landlord before changing the locks.
It is more difficult for a woman in a common-law relationship to get an
order for exclusive possession. She can only make this request if she is
also asking the court to give her child or spousal support.
An order for exclusive possession doesn’t affect either person’s property
rights - even if the abuser is not allowed into the house, he can still claim
a share of its value.
2. Know the Abuser’s Terms of Release
If the police charge an abuser with stalking, assault, or sexual assault, he
will be taken to a bail hearing. At this hearing, the court will decide if he
should be held in jail until his trial or if he should be allowed out. If he is
allowed out of jail, the court has granted bail.
Most abusers who are granted bail must follow strict conditions. These are
called terms of release, or bail conditions. If the abuser is released by the
police there will likely also be terms of release. Terms of release almost
always say that an abuser must stay away from his victim. Often the terms
of release also say that the abuser:
• must be home by a certain time;
• is not allowed to consume alcohol or drugs;
• is not allowed to own or have firearms;
• must live in a certain place;
• must report regularly to the police; and/or
• must have access to the children only through a court order
How long do terms of release last?
In most cases, the court will not remove terms of release until the trial is
over and all charges have been dealt with. Sometimes, courts will change
the terms before the trial is over. If one of the terms of release is that the
abuser must stay away from the woman he abused, the court will not
change that term without getting her permission.
What if the terms of release conflict with an order from family
A family court order may say that an abuser has the right to spend time
with his children, but if he is charged with assaulting his partner, his terms
of release could say that he must stay away from her and the children.
When this happens, it can be very hard to know what to do. Legal advice
should be found as soon as possible. The judge and crown attorney
dealing with the assault charge should be told about the orders from
Who will watch the abuser?
The court may also decide that someone must watch what the abuser is
doing. This person is called a surety. The surety may have to pay a cash
deposit before the abuser is released. The surety must tell the police if the
abuser violates his terms of release. If an abuser violates the terms of his
release, the woman he abused should report this to the police, not to the
What happens if the abuser does not obey?
If an accused person does not follow any of his terms of release, he may
be charged with a new criminal offence. The new charge will be added to
the charges from the original crime. If the accused person keeps breaking
the terms of release, the court can decide that his bail should be taken
away. In this case, he will be kept in jail until the trial. The court could also
keep him in jail if he does something that shows he may be planning to
hurt the woman he abused, like buying a gun.
3. Get a Peace Bond
If a woman has been threatened or assaulted, she may be able to get a
peace bond. She can also apply for a peace bond if her abuser threatens
or attacks anything that belongs to her. A peace bond may say that the
abuser must stay away from the woman, her family, and her property for
up to a year. A peace bond is not a criminal charge, but disobeying a peace
bond is a crime.
When to use a peace bond
A peace bond is a good idea if a woman doesn’t want to involve the police
or if she told the police about the abuse and they didn’t lay a charge.
How to get a peace bond
To get a peace bond, the woman will have to talk to a Justice of the Peace
(JP). She will have to swear to tell the truth and tell the JP why she’s afraid
of her abuser. The JP will tell the abuser that she has asked for a hearing
to get a peace bond. The abuser can go to the hearing and give evidence.
The JP will listen to both of them and then decide what to do. Here is
what can happen.
• If the JP believes that the woman has good reason to be afraid, she will
order the abuser to sign a peace bond. The peace bond will say that the
abuser must stay away from the woman, her family, and her property for
up to a year.
• If the JP cannot tell who to believe or if she believes that both parties
are responsible for the situation, she may dismiss the application. Or,
the JP can order a mutual peace bond. This means that both people must
stay away from each other and sign the bond saying that they promise to
follow what it says.
Women should be cautious about mutual peace bonds because some
abusive men will use this to keep controlling and harassing their partners.
For example, a man may trick his partner into getting too close to him so
he can call the police and have his partner charged with disobeying the
order. It is important to get legal advice before agreeing to a mutual peace
The woman can ask the JP to add conditions to the peace bond. For
example, she can ask for the peace bond to say that the abuser must not
go near her workplace.
Once a woman has a peace bond, she should file it with the CPIC
(Canadian Police Information Centre). The police are supposed to check
CPIC every time they respond to a domestic call.
What happens if an abuser does not obey?
If an abuser disobeys the peace bond, the woman should call the police to
report the breach. They will not charge him with breach of the peace
bond unless they have a record of it. This is why it is important to file the
peace bond with CPIC. It’s also helpful to always have a copy of the peace
bond with you, to show to the police if you need to.
Finding a Lawyer
Family breakdown is difficult and stressful. If a woman separates from her
partner (e.g. husband, live-in boyfriend) there will be many legal issues to
sort out. She will have to decide about financial support, make
arrangements about the children, and divide family property. These are
difficult issues. Some couples are able to deal with them on their own. If
they can’t, they will need legal help to sort out these arrangements.
When a relationship ends, a lawyer who knows family law should be
found. If a woman in this situation doesn’t get legal advice, she might
mistakenly give up important legal rights she didn’t even know she had. It’s
especially important for a woman to have a lawyer’s help if:
• her partner was abusive or violent;
• her partner has tried to bully or scare her;
• her partner has taken advantage of her;
• her partner has more power than her;
• she cannot read, speak, or understand English; and/or
• her partner has a lawyer.
How to find a family law lawyer
Here are some places that can help a woman find a family law lawyer:
• a local community legal aid clinic.
• a local women’s shelter or other community agency.
• the Assaulted Women’s Helpline at 416-863-0511 in Toronto or toll free
at 1-866-863-0511. The TTY line for Deaf or Hard of Hearing women
is 1-866-863-7868. This is a confidential 24-hour crisis line, available in
over 150 languages.
• the Family Law Office, if a woman lives in Toronto, Ottawa, or Thunder
Bay. These offices have lawyers who can help with family law cases. The
lawyers are paid by Legal Aid Ontario (LAO). They only accept clients
who have legal aid certificates.
• If you have been abused, you can call the Lawyer Referral Service at 1-
800-268-8326. If you have not been abused, you can still use this service
by calling 1-900-565-4577, but you will be charged $6 for your call.
How to pay for a family law lawyer
Hiring a lawyer costs money. If a woman can’t afford a lawyer, she can
apply to Legal Aid Ontario (LAO). LAO offers help for some family law
issues. To apply, she can go to any one of LAO’s offices across Ontario.
The phone book will have addresses and telephone numbers of the
closest office, or she can call 1-800-668-8258 or for TTY call 1-866-641-
8867. In Toronto, she can call 416-979-1446. She can find out more about
LAO on its website at www.legalaid.on.ca.
To get Legal Aid, a woman must have:
• a low income, and
• a legal issue that they think is “serious enough” to need a lawyer.
If a woman has been abused or bullied, she can tell LAO. LAO is more
likely to give legal aid to women who experience violence.
If her partner has abused or bullied her, she can get a legal aid certificate
for two hours of free legal advice. To get this certificate, she doesn’t have
to prove that she has a low income. She must fill out a form called the
“Advice Lawyer Family Violence Authorization” that she can get from
community legal clinics or women’s shelters.
If a woman meets the legal aid criteria, LAO will give her a legal aid
certificate. She can use this certificate to hire a lawyer. Sometimes, LAO
may offer to pay for a lawyer on the condition that she pays them back.
Not all lawyers accept legal aid certificates. When a woman calls to make
an appointment, she should ask if the lawyer does legal aid work.
What a woman can do if she does not have a lawyer
If a woman doesn’t have a lawyer to work on her family law case, she may
still be able to get some legal information and advice at the courthouse.
Two kinds of help are available at every family law court:
1. Duty counsel lawyers. Their job is to speak to low-income people who
don’t have a lawyer. They can offer advice. If they are not busy, they may
be able to help her out in court.
2. Family Law Information Centres (FLICs). FLICs can give legal
information on family law and explain how family court works. They can
also tell a woman about other kinds of supports for families, such as
parenting classes, family mediation, or how to contact community
agencies. Some FLICs have advice lawyers who can meet with the woman.
The advice lawyer can discuss her situation and give some legal advice but
will not help her in court.
92% of surveyed Christian women didn’t know what an Advice Lawyer Family
Violence Authorization is. The remaining 8% didn’t answer the question.
At some family law courts, a woman can get help from law students. They
help people who do not have lawyers fill out court forms.
Marriage and Divorce
There are two kinds of legal marriage ceremonies: a religious ceremony
performed by a pastor, priest, or other religious leader listed in the
Marriage Act, or a civil ceremony performed by a judge, justice of the
peace, city clerk, or someone else who is licensed to perform marriages.
Here are some other legal rules:
• Women must be 18 years old to get married in Ontario. A young
woman who is 16 or 17 years old can get married if she has written
permission from her parents. Children under 16 can’t get married in
Ontario, even with permission from their parents.
• Having more than one spouse is called polygamy. It’s a crime in
• If a woman was divorced outside Canada, she will need to prove that
her divorce was legal in the country that granted the divorce.
• A woman can’t marry her parent, grandparent, child, grandchild,
brother, sister, half-brother, or half-sister. This is true even if she is
related to this person by adoption.
• If a woman or her partner can’t understand what it means to get
married, their marriage is not legal.
• If a woman is forced into a marriage, the marriage is not legal.
Most of the time, legal marriages done outside Canada are recognized
here. But polygamy isn’t legal in Canada. If a woman was married in a
country where polygamy is legal, she might have some rights under family
law if the relationship ends, such as rights to child support, spousal
support, and property division. If she’s unsure about the status of her
marriage, she should get legal advice.
There is one law about divorce for everyone in Canada: the Divorce Act.
People apply for divorces in family court. One spouse can apply or both
spouses can file a joint application for divorce. The application can ask for
just a divorce, or it can ask the court to decide on issues of child custody,
support, and how to divide property. These are called claims for
When a woman applies for a divorce, she must show that her marriage has
broken down. The most common way is when spouses have been living
separate and apart for at least one year. The law says that it’s possible for
people to live “separate and apart” in the same house, no longer behaving
as though they are married. The law also says it’s possible to get a divorce
if a spouse committed adultery or has been so physically and/or mentally
cruel that the other person can’t live with it anymore.
Ontario accepts that divorces from other countries are legal if one of the
spouses lived in the country that granted the divorce for at least one year
before applying. If neither of the spouses lived in the country for a year,
the divorce may still be legal if the spouse who obtained the divorce can
prove that he or she has a “real and substantial connection” with the
country that granted the divorce. For example, if the spouse was originally
from the country that granted the divorce and had returned there when
the relationship ended, the court could say that the spouse had a “real and
substantial connection” to the country.
If a woman was divorced in another country, she must have a certified
copy of the divorce order. If it’s not in English or French, she has to have
the order translated by a certified translator. She also needs a letter from
an Ontario lawyer stating that the divorce should be recognized under
More difficult divorce issues
Communities, including Christian communities, hold different beliefs
about divorce. Some churches or religious groups might not recognize
civil divorce and they might say that a woman who is divorced can’t be part
of the community anymore. They might say that she isn’t allowed to get
remarried in a religious ceremony. A woman in this situation would still be
able to remarry in a civil ceremony.
Canadian family law says that spouses can’t use religious divorces to try to
get their own way in family law negotiations. If a man tries to stop his ex-
spouse from getting remarried in their church or religious group, the court
may refuse to deal with his family law application or may decide that he
can’t defend himself in the family proceeding. The court can also overrule
a divorce settlement if it learns that the husband got what he wanted in
the divorce by threatening to stop his ex-wife from getting remarried in
their church or religious group.
What are Domestic Contracts?
Domestic contracts are legal agreements about intimate relationships.
Couples use domestic contracts to set out certain terms for their
relationships. They aren’t legal unless they are in writing. Both people must
sign the contract in front of a witness. To change anything in the contract,
or to end the contract, they must follow the same rules: it must be in
writing and both people must sign in front of a witness.
Types of Domestic Contracts
1. A cohabitation agreement can be made before or after a couple
moves in together. It can say:
• How the couple wants to organize some things in their relationships (for
example, separate finances);
• What will be done in the event that the relationship ends (for example,
how to divide property and how much support one will pay to the other).
These kinds of terms are particularly important for common law couples
because the family law rules about property division do not apply to them.
When a common-law couple separates, the home that they lived in
belongs to the person whose name is on the title.
A cohabitation agreement cannot say anything about custody and access
for children. Custody, access and child support can only be decided after
the couple separate. If common-law partners get married after living
together, their cohabitation agreement becomes a marriage contract.
2. A marriage contract is like a cohabitation agreement, but it’s for
couples who are married or who are planning to marry. If the contract is
for a couple who is planning to marry, it’s sometimes called a pre-nuptial
agreement. Marriage contracts can speak to the same kinds of issues as
cohabitation agreements, but they can’t say anything about custody, access,
or child support. These issues can only be decided after the couple
A woman who is married has special rights to the home where she lives,
called the matrimonial home. The law says that spouses who are married
have equal rights to live in their family home. It also says that one person
can’t sell or mortgage the home without getting permission from the
other. Marriage contracts cannot change these rights.
But marriage contracts can be used to get around one important right.
The law says that both spouses have the right to half of the value of the
matrimonial home. The value of the home is shared along with other
assets and debts when a couple separates. This is true no matter who owns
the home and who paid for it. It’s also true even if one person owned the
home before they got married. A husband might ask his wife to sign a
marriage contract that says she will not get to share in the value of the
home, or that her share will be less than half. The law allows marriage
contracts to do this.
3. A separation agreement is another kind of domestic contract. It’s
used to decide how to deal with issues when a couple separates. A
separation agreement can apply to a spouse who was married or in a
common-law relationship. It can address custody and access for children,
financial support, and how property will be divided. Couples sometimes
use separation agreements because negotiating an agreement can be
quicker than going to court and the couple can control what is in their
How are domestic contracts enforced?
A domestic contract can be filed with the court. Once it is, the support
clauses will be enforced as though they were court orders. Filing a
domestic contract with the court does not mean that the court will review
the agreement. The court will only review the agreement if a woman or
her spouse challenges the contract. Women can also ask the court to help
them enforce other terms in the agreement.
In most cases, the court will enforce what is in a domestic contract. That’s
why a woman should seek legal advice before signing a domestic contract.
Before entering the contract, a woman should understand how her rights
under the agreement differ from her rights under the law. A lawyer can
help a woman find out if she has all the information about her partner’s
finances that she needs to decide whether the agreement is right for her.
Will the courts change an unfair contract?
A woman has to apply to the court if she wants to challenge something in
a domestic contract. Courts don’t like to interfere with these agreements.
The courts won’t change a contract just because it gives someone less than
they would get under family law. But a woman might be able to challenge
the contract if she can show that:
• her partner wasn’t honest about his financial situation;
• she was pressured into signing the contract; and/or
• the agreement is extremely unfair.
Courts don’t usually change what contracts say about dividing property.
They are a little more likely to change what a contract says about spousal
support. If a woman’s situation is worse than it was when the contract was
signed, the court may be more likely to change the agreement. When a
domestic contract is challenged, the court may decide that one part of the
contract should be taken out. If that section is a key part of the contract,
the court may decide that the whole agreement isn’t legal.
Custody and Access
In Canada, the law says that both parents have the same rights to raise
their children and to make decisions about how the children are cared for.
If parents separate or do not live together, they must make plans about
their child’s daily life and where the child will live. These arrangements can
be made with or without the help of lawyers.
If the parents cannot agree, either of them can apply to the court for an
order for custody or access. They must apply for custody or access in the
city or town where their child usually lives. Orders about custody or access
can be changed if either parent’s situation changes a lot.
What is custody?
Custody does not mean where the child lives. That is called residency.
Custody means the parent who is responsible for making decisions about
the child’s life. The custodial parent can be the child’s father, mother, or
another guardian who has been granted custody.
There are two kinds of custody:
1. If a woman has sole custody or custody, she has the right to make all
major decisions about her child’s life by herself. This usually includes
decisions about the child’s health, education, and religious teaching. In this
case, she is referred to as the custodial parent. The other parent is called
the non-custodial parent.
Non-custodial parents often have the right to information about their
children’s lives, but the custodial parent does not usually have to consult
with them before making decisions.
2. If parents have joint custody, they must make all major decisions
about the child’s life together.
Sometimes parents say they have shared custody. This does not
necessarily mean that they share decisions about the child. It means that
the child spends the same amount of time living with each parent. It is
also called shared parenting.
Where the children live
Most of the time, children spend more time with one parent than the
other. When this happens, the home where the child spends more time is
called the child’s primary residence. The parent who does most of the
child care is called the primary caregiver. Courts often decide that children
should live with the parent who was the primary caregiver before and after
What is Access?
Most of the time, courts believe that it is in a child’s best interests to have
as much contact as possible with both parents. If a child does not live with
one parent, that parent will usually still have the right to spend time with
the child. They usually also have the right to know about the child’s health,
well-being, and education. This is called access. Even parents who have
not spent much time with their children usually get access.
If parents can talk easily and honestly with each other, they can make an
informal arrangement about access. If they cannot get along or if the
relationship was abusive, it is better to go to court to make access
What to expect in court
There are many different kinds of access orders. Some are very open while
others are more specific. A court order about access could allow parents
to make their own access arrangements. This is called “reasonable and
generous access on request”. If parents do not get along, it is better to get
an order that sets out the dates and times of access visits. This way the
parents will not have to always talk to each other about the details of the
access visits. Abusive men often use access visits to continue harassing
women. If a woman is in this situation, she should speak with a lawyer,
duty counsel, or a women’s service provider.
Sometimes the court may set up a graduated schedule. This means that
the parent has little access at first, but has more access over time. A
graduated schedule gives the child a chance to get to know and trust the
access parent. The courts may use a graduated schedule if the child has
not spent much time with the access parent or if the child is very young
when the parents separate.
The court can order supervised access if it is worried about the child’s
safety with the access parent or if the access parent and the child have not
spent much time together. This means that the parent cannot be alone
with the child. The person who supervises the visits can be a member of
the family, or someone else selected by the court. Supervised visits can
also happen at places called supervised access centres, where staff
monitor the visits.
The court can also order supervised access exchanges if it is worried
about conflict or safety when the parents meet to transfer the children.
Supervised access exchanges take place at a supervised access centre,
where staff will help to transfer the children between parents so that they
will not have contact with each other.
In very rare cases, a parent will be denied access to their child. This will
only happen if the court believes the child will be hurt by that parent.
Following custody and access orders
If there is an agreement or court order for custody and access, both
parents must follow it. Either parent can ask the police to help enforce the
custody order. If the parent with primary residency interferes with the
other parents access, the access parent can ask the court to change the
order and transfer custody of the children to him. The law does allow a
woman to refuse to allow access if she is afraid for her children’s safety. If
she refuses access, she should seek legal help right away.
Sometimes a parent will fight for access and then not show up to see the
children during the ordered access time. This can be upsetting but
unfortunately, there is nothing the law can do to force parents to use their
access time. If this happens on a regular basis, the custodial parent should
keep track of all missed or shortened visits. She may be able to use this
information to go back to court and ask for the access order to be
How do courts decide about custody and access?
When courts make decisions about custody and access, they must consider
the best interests of the child. This is a strict legal term. Here is some of
what the court looks at:
• has there been any abuse in the household?
• how loving is the relationship between each parent and child?
• how strong are the emotional ties between the child and each parent who
• how long has the child lived in a stable environment?
• what plans does each parent have for the child’s care and upbringing?
• how well can each person parent?
• what does the child want?
Family law courts also look at what arrangements already exist. This is
called the status quo. If the child’s living arrangement is working well, the
court will not usually make big changes. Parents are not the only people
who can apply for custody and access. The law says that any person can
apply. Sometimes, extended family members such as grandparents, step-
parents, or aunts apply to the court. No matter who applies, the court will
consider the best interests of the child.
Moving with the children
One difficult issue that often arises when parents don’t live together is
whether the parent the children live with can move the children out of the
city, or in some cases, even out of the province or the country. The parent
with the children may want to move to be closer to other family members
for support or for a job opportunity. Depending on a women’s status, she
may be forced to leave Canada. Such a move may make it difficult for the
other parent to see the children on a regular basis. Depending on the
distance of the move, cost may also become an issue.
Like all decisions dealing with children, the test the court will use to decide
whether or not to allow the move is the best interests of the children. If
a woman is allowed to move with her children, the court may change the
access arrangements to allow for longer visits with the access parent or it
may reduce the amount of money she receives in child support because
the other parent has expensive travel costs associated with access.
Travelling with the children
In most cases, one parent cannot take the child outside Canada without
the other parent’s permission. If a parent travels with the children, they
should have the custody order and a letter from the other parent that gives
permission for the children to leave Canada. The letter should be
notarized by a lawyer. When parents cross the border, they should expect
the border guards to ask them to prove that the children’s other parent
knows about the trip and has agreed to let them leave the country.
Sometimes, one parent takes the children outside Canada without the
other parent’s permission. This is very serious, because it can be difficult
to get the children back once they leave Canada. This is called child
abduction and it’s a serious crime.
There is no way a woman can make absolutely sure her children never
leave Canada illegally, but there are some things she can do to help protect
her children. She should make sure that the custody order or agreement:
• is as clear and detailed as possible and
• specifically says that the children cannot travel outside of Canada.
The order can also say that the woman or the court must keep the
children’s passports or the access parent’s passport.
The main law that may be able to help a woman get her children back is
the Hague Convention on the Civil Aspects of International Child Abduction. It is
an international treaty signed by 75 countries. The countries who signed
the treaty agree that they will work together to find and return children
who have been illegally moved from one country to another.
If a child is taken to a country that did not sign the Convention, it will be
much harder to get them back to Canada. If this happens, a woman can
fight for custody using the laws of the country where the child was taken.
She can also try to negotiate with the abductor and his family.
For more information about how to prevent an international abduction,
read “International Child Abductions: A Manual for Parents”. This
booklet was produced by Foreign Affairs Canada. It also says what to do
if a child is taken out of Canada without a parent’s permission. You can
order a copy from Foreign Affairs Canada or read the manual online at
www.voyage.gc.ca. Click on “Children and Travel” and then on “Custody
What to do if a child has been taken out of Canada
If a woman thinks her child has been taken out of the country, she should:
• call the police right away. The police will send an alert to the border
guards in the country where the other parent might take the child.
• call the Consular Affairs Bureau right away at 1-800-387-3124 or 1-800-
267-6788. Their office is open 24 hours a day, 7 days a week.
Child and Spousal Support
1. Child support
Children have the right to financial support from both of their parents. If
parents do not live together, they must share the costs of caring for the
If a woman has physical custody of her children (the children live with her
most of the time), she is entitled to child support from their other parent.
This person is called the payor. The payor can be a biological parent or an
adoptive parent. A step-parent who has acted as a parent may also be
required to pay child support. The parent who receives child support
payments is called the recipient parent.
How people get child support
Parents can make their own arrangements about child support. If they
cannot agree about the amount or if the agreement breaks down, they can
ask the court to make an order for child support. If a woman has physical
custody and needs to get child support, she should talk to a lawyer.
How long must a parent pay child support?
Child support must be paid as long as the child is still dependent. In most
cases, this means at least until the child turns 18. Children under 18 are no
longer dependent if they get married or leave home. The payor parent
may have to keep paying child support after the child turns 18 if the child
cannot support herself because she is sick, has a disability, or is a full-time
How does the court decide the amount of child support?
The federal and provincial governments decide the basic amounts that
payor parents should pay for child support. The amounts are based on the
cost of living in each province. These amounts are called the Child
Support Guidelines. They were updated in 2006. Courts must use the
Child Support Guidelines for all applications for child support.
The basic amount that a payor must pay is based on:
• the payor’s gross income. This means how much income they had before
they paid any taxes or made any deduction, and
• how many dependent children the payor is asked to support in that
The courts do not have to use the Child Support Guidelines if the child
is over 18; the child spends at least 40% of her time with each parent; or
there are multiple children of the relationship and each parent has a child
living with them.
In these cases, the court will look at the family’s situation. The amount of
support will be based on the income of both parents and what the
In many cases, the court will order the payor parent to pay the basic
amount from the Guidelines. However, recipient parents may be able to
get extra child support for special expenses such as fees for day care and
education or unusual health care costs. If the child has special expenses,
both parents must share the cost. The amount each parent will pay
depends on their income.
In rare cases, the court may reduce the basic amount of support. The
court will only do this if the payor parent can prove that the Guideline
amount would cause him undue hardship. This means that he would not
be able to pay for his own living expenses. For example, the court could
reduce the amount of support if the payor has a disability or if he is
paying support to other dependents.
Of 37 Christian women surveyed, 16 did not know or were unsure about how someone
could get child support for their children.
The payor cannot claim the amount of child support he pays as a tax
deduction. Recipient parents do not have to claim child support payments
they receive as income.
Can the amount of child support in the order be changed?
If both parents agree that the amount of child support needs to change,
they can sign a new agreement. If they cannot agree on a new amount,
either can ask the court to change the existing order. This is called varying
the child support order. They can ask the court to change the amount of
child support or change the terms of the existing order.
The court will only change the amount of support if the situation has
changed a lot, for example, if the payor’s income has increased or
decreased, the child’s living arrangements have changed, or there are new
Rights and responsibilities
When a woman applies for child support, she has rights and
a) The right to information about the payor’s finances
If a woman applies for child support, she has the right to know the truth
about the other payor’s finances. This is called full financial disclosure. To
make sure the amount of support is correct, she has the right to full
financial disclosure from the payor once a year.
Sometimes, the payor does not cooperate. He may:
• not give the information that is asked for, or
• choose to be unemployed or work in a job that does not pay much
money, just so he does not have to pay child support.
If this happens, the court can estimate what it thinks his income is or
should be. This is called imputing an income to the payor. The court will
use the imputed income to decide how much child support the payor
b) Parents on Social Assistance
If a woman is on social assistance (Ontario Works or Ontario Disability
Support Plan), she must still try to get support from the other parent. If she
does not, her social assistance may be cut or cancelled. If a woman is
receiving social assistance, every dollar she gets in child support will be
deducted from the amount of social assistance she gets each month.
If a woman does not have a support order, the government can apply for
support on her behalf. She will be expected to cooperate with the
application. The government can choose not to apply for support if they
can’t find the payor parent or if the woman was abused and there is
concern for her safety.
Payor parents on social assistance are still expected to pay some child
support if their annual income is more than $6,700.
2. Spousal support
Spousal support is money that one spouse pays to the other one when
their relationship ends. Spousal support is meant to help the poorer
spouse. The person who pays support is called the payor. The person who
receives support is called the dependent spouse or recipient.
Spousal support can be a one-time lump sum payment or a regular
payment such as once a month. Support can be for a set period of time
or it may not have an end date.
Spousal support affects a person’s taxes. The payor spouse can deduct the
spousal support paid as a tax deduction. The recipients spouse must
report the money she receives as taxable income.
When spouses separate, they can make their own agreement about
support. They do not need lawyers to write this agreement. If they cannot
agree, or if agreements break down, they can ask the court to make an
order for spousal support.
If a family does not have a lot of money, it may be difficult to get an order
for spousal support. The law requires that child support must be paid first.
The court will only consider a request for spousal support if the payor
spouse has enough money left over after child support has been paid.
Who can ask for spousal support?
A woman can ask for spousal support if she was married to her partner.
Her partner can be a man or a woman. She can also ask for spousal
support if she and her partner lived together without marrying if she
meets the definition of a “common law” spouse under the law. Ontario’s
Family Law Act says that a couple will be considered common-law spouses
• they have lived together for at least three years or
• they were in a steady relationship and they have a child or have adopted
Why do courts award spousal support?
When relationships end, one spouse may be better off financially than the
other. This may be because of how they shared responsibilities during the
marriage. For example, if a woman stayed home to raise children, she may
not have earned as much money as her spouse. She may have taken a low-
paying job so that her spouse could study to get a higher-paying job.
In these circumstances, the courts may decide her spouse must help
support her for some time after their relationship ends. This doesn’t mean
that the dependent spouse does not have to take any steps to support
herself. The court will expect her to work towards becoming financially
independent to the best of her ability.
When do courts award spousal support?
The law lists things that courts should think about when they decide
whether to order spousal support. Here are some things courts must
• how long the couple lived together or was married;
• what each spouse contributed to the relationship; and
• whether the couple had any orders or agreements about support, for
example a domestic contract.
A spouse’s behaviour has nothing to do with whether or not he will have
to pay support or the amount of support he will have to pay.
What do courts consider when they award spousal support?
Here are some things the law says courts should consider when they
decide how much support should be paid:
• how much each spouse owns and can earn;
• how long the couple was married or lived together;
• the age and health of each spouse;
• how much each spouse can contribute to her/his own support;
• whether a potential payor is able to pay support;
• how long it could take before the dependent spouse can support
herself and how much it would cost;
• what things the dependent spouse did to make it possible for her spouse
to have the career and income he now has;
• whether either spouse needs to stay home with a child;
• what kinds of childcare each was responsible for during the relationship;
• how a spouse’s ability to earn an income was affected by her
responsibilities in the relationship.
If a woman applies for spousal support, she has the right to know the
truth about her partner’s finances. This is called full financial disclosure.
How much will the spousal support be?
In the past, the law about spousal support was not very clear. Family
courts across Canada made many different decisions about when it should
be ordered, how much it should be and how long it should be paid. To try
to make the law more consistent, the federal Department of Justice
created the Spousal Support Guidelines (SSG).
The SSG list the most and least amount of support spouses should get in
different circumstances. The amounts depend on things like how long the
couple was together, how many children they had, what kind of work each
person did, and how much each person earned. The guidelines are not law,
but most lawyers and judges use them to help decide what support is
3. Enforcing Support Orders
Orders for support are enforced by the Family Responsibility Office
(FRO). Every court order for child or spousal support is automatically
filed with the FRO. If spouses make their own agreements about support,
they can file a copy with the FRO for enforcement.
How does the FRO work?
When a support order is filed, the payor must send all payments to the
FRO. Once the FRO gets the money, it sends it to the recipient spouse.
Because the FRO office is so busy, a woman may have to wait several
months after filing an order before she starts to receive the support
What happens if the payor does not pay?
Sometimes, the payor is late or misses a payment. Here is what the FRO
can do to collect the money:
• If the payor is working, the FRO can order his employer to take support
from his wages.
• If the payor is unemployed or self-employed, the FRO can garnish his
account. The FRO can also put a lien on his personal property such as a
car or home. If he tries to sell this property, the FRO will get the money
the payor owes.
• If the payor is always late or owes a lot of money in child or spousal
support, the FRO can try to force him to pay by suspending his driver’s
license and other kinds of licenses such as hunting and fishing licenses.
It can cancel his passport. It can also take money the government owes
him, such as a tax refund or employment insurance benefits.
What if the payor doesn’t live in Ontario?
The FRO will help collect support if the payor lives anywhere in Canada
or the United States. This is because all of the provinces and the states
have signed agreements that allow FROs to collect support orders across
these boundaries. Ontario also has agreements with some other countries
including Bermuda, Ghana, Hong Kong, the Czech Republic, and the
United Kingdom. If the payor lives in a country that does not have an
agreement with Ontario, the FRO cannot help enforce the support order.
The only way to collect support in this case is to use the laws of the
country where the payor lives.
How Property is Divided in Family Law
When couples separate, they will have to divide their property. Property
is anything they own such as homes, cars, personal and household items,
pensions, bank accounts, and any other investments. Property also
Property rights are totally different for couples who are legally married
and those who live common-law. If a woman is living common-law, she
does not have the same property rights as a woman who is married.
If a woman is legally married, the law has rules about how to decide the
value of family property and how to divide the property. The law sees
marriage as an economic partnership. When a marriage ends, the family
assets and debts that have built up during the marriage (net family
property) must be divided equally. However, if a woman was not legally
married, she will not automatically have the same right.
How property is divided for married couples
The law assumes that each spouse has contributed equally to the
relationship, financially and in other ways. If a marriage ends, the general
rule is that spouses should split the net family property equally, no matter
who paid for it or whose name the property is in. Sharing family property
means that spouses share the value of the family’s assets and the family’s
What is the process for dividing property?
The process of valuing and dividing family property is called
equalization. There are two steps in the equalization process.
Step 1: Calculate net family property
The first step in the process is that each spouse calculates the value of
their net family property. To do this, each spouse must make a list of
her/his assets at the time of separation and the total value of these assets.
From this amount, spouses deduct the value of:
• debts owing at separation;
• the value of property they brought into the marriage;
• gifts they were given;
• property they inherited; and
• damages for personal injury.
If one of these assets was used to buy the family home, the spouse cannot
deduct the value of that asset from the net family property. This is because
a married couple’s family home is treated differently than all other assets.
The family home, or matrimonial home, is the home where the couple
mostly lived during their marriage. If they own this home, each spouse has
the right to share in the value of the equity on the home. This is true no
matter whose name is on the deed, even if one of them owned the home
before the marriage. This is also true if the home was bought using gifts
that one spouse received during the marriage. The only time the value of
the home would not be shared is if the couple had signed an agreement
(marriage contract) that says the home will be kept out of the equalization
The value of some property can change over time. This can cause
problems when trying to calculate net family property. To deal with these
problems, the law outlines what date should be used as the valuation date.
It is usually the date the couple separated and decided not to get back
Step 2: Share the family property equally
Once each spouse has calculated the net family property, the value of the
property must be equalized. Each spouse must tell the other their net
family property. The spouse whose net family property is higher must pay
the other spouse half of the difference between the two amounts. This is
called an equalization payment.
In some cases, the court can order a different equalization payment if the
equalization amount is unfair. For example, the court could order a man
to pay more if he did not tell his spouse about large debts he had when
they were married or if he got into major debt on purpose.
What rights do women in polygamous marriages have?
Polygamy is not legal in Canada. If a woman was married in a country
where polygamy is legal, she may have some rights under family law,
including the right to apply for an equalization of family property.
How property is divided for common-law couples
Property rights are very different for people who choose to live common-
law rather than getting married. Even though the law recognizes common-
law relationships in many ways, the rules about dividing property equally
do not apply to common-law couples. Generally, each spouse owns
whatever property each brought into the relationship and whatever each
of them bought while they were together. What can be more complicated
is sorting out the increased value of property owned by just one common-
If a woman and her partner lived common-law, they do not have equal
rights to the value of their matrimonial home. The home they lived in as
a couple belongs to the person whose name is on the title. Common-law
partners can write a cohabitation agreement to set out how they intend to
deal with property and debts if they separate. If the couple do not have a
cohabitation agreement and cannot agree about how to divide the
property, they can go to court for assistance. They can ask a judge to
divide the property they bought as a couple or to award each a share in the
increase in value of property during the relationship.
To get this kind of order, a woman must be able to prove that she
contributed to the accumulation or maintenance of the property. For
example, she may get some money if she can prove that she paid some of
the bills on her partner’s home, or that she added to the value of her
partner’s business by providing free labour.
Alternative Dispute Resolution in Family Law
When a couple separates, it can be difficult to deal with legal issues. For
example, spouses must decide about financial support, how to care for
their children, and how to divide family property. They can go to court to
make these decisions, they can make informal arrangements, and/or they
can use alternative dispute resolution.
What is Alternative Dispute Resolution (ADR)?
ADR is a new concept for most people. ADR refers to different ways to
solve family law issues instead of going to court. The different types of
ADR are negotiation, mediation, arbitration, and collaborative family law.
They all have their own advantages and disadvantages. Their basic
differences will be explained below.
Couples cannot be forced into ADR for a family law conflict. This is
important for women to know. A woman and her spouse or partner must
choose it freely.
When to use ADR
In some family law conflicts, ADR can be better than going to court
• the couple can have more control over what happens to their conflict;
• the couple can better choose how to deal with their conflict;
• it can be faster and cheaper than a court case; and/or
• it may be less upsetting than going to court.
When ADR should not be used
ADR isn’t an appropriate way for a woman to resolve a family law conflict
with a former partner or spouse if:
• he has more power than she does;
• he does not listen to her or respect her;
• he has been violent or abusive to her;
• he has tried to bully or scare her; and/or
• he has tried to take advantage of her.
ADR is also not recommended if a woman feels that:
• she cannot talk to her former partner or spouse and/or
• she cannot work cooperatively with her former partner or spouse.
If a woman can be open and honest with her former partner or spouse,
ADR may be a good way for her to work out the issues she has upon
separation. If she is thinking about using ADR, she should get legal
advice. If she doesn’t, she may give up rights that she didn’t know she had.
If possible, a lawyer should be present to assist in the ADR process.
What are the different kinds of ADR?
Here are the four kinds of ADR that can be used to deal with family law
Negotiation can be very informal. The couple talks until they reach an
agreement. They can speak to each other, or they can hire lawyers to talk
on each of their behalf. Sometimes one person has a lawyer and the other
person does not. Most lawyers will try to negotiate an agreement first. But
if none is negotiated, the couple can decide to go to court.
When a couple negotiates, they may come to a spoken agreement. The
agreement should be written down and signed by both spouses. If it’s not
in writing, it will be hard to enforce.
A mediator can help couples talk to each other and come to an agreement.
They know how to deal with conflicts. Mediators are usually social
workers, psychologists, or lawyers.
Mediators must be fair. They cannot take sides with either person in the
conflict. Mediators can suggest ways to solve the conflict, but the
spouses/partners do not have to take their advice. Mediators cannot offer
A woman should talk to a lawyer before she takes part in mediation. A
lawyer can explain her rights and responsibilities, but does not usually
come with her to the mediation.
If a woman isn’t happy with the mediation, she can leave and it will be
over. If the couple cannot reach an agreement, the mediation will end. At
that point, they can try a different kind of ADR or go to court. If they
come to an agreement at mediation, each of them should review the
agreement with a lawyer before signing it.
Mediation is free. Mediators can be found at any family court in Ontario.
To find information about Family Mediation Services at family court, visit
the Ministry of the Attorney General’s website at www.attorneygeneral.
jus.gov.on.ca/english/family/mediation.asp or call 416-325-0357 in
It is also possible to hire a private mediator if the couple can afford the
fees. The Ontario Association for Family Mediation is a non-profit
association that can provide more information about private mediators.
Their website is www.oafm.on.ca and their phone number is toll-free at 1-
800-989-3025. Also, if a lawyer is helping a woman with mediation, she
may have to pay the lawyer.
In arbitration, the couple hire a neutral third person to resolve their
conflict. This person is called an arbitrator. The couple will appear before
the arbitrator to explain their sides and give evidence, and then the
arbitrator will make a decision. This decision is called an arbitral award.
An arbitrator cannot grant a divorce or an annulment, but can decide on
custody, support, access, and how to divide property. Arbitrators can only
resolve the issues that they are asked to resolve. The arbitrator must use
only Canadian or Ontario family law.
If a woman doesn’t know her rights under Canadian laws, she should talk
to a lawyer. Once arbitration starts, she cannot decide to walk away. She
must obey the arbitrator’s decision. Arbitration can be expensive because
she may have to pay for a lawyer as well as help to pay for the arbitrator.
Legal aid is not available for arbitration. Even if a woman doesn’t have a
lawyer with her when she appears before an arbitrator, she must prove that
she got legal advice before agreeing to arbitrate.
Remember, arbitration is not the same as mediation. In mediation, a
woman has choices: she can end the mediation at any time or decide not
to accept what her former partner or spouse is offering or what the
mediator suggests. But in arbitration, a woman has no choice. She must
accept the arbitrator’s decision, as long as it follows the law. She can appeal
an arbitral award to the court in some circumstances.
4. Collaborative family law
Collaborative family law is a new form of ADR. In collaborative family
law, the couple and their lawyers work together to resolve their family law
conflict. This is a very different way for lawyers to work. In court, lawyers
must fight for their client’s rights without considering what the other
Collaborative family law is usually faster and cheaper than going to court.
It is also more relaxed than court. But it is not a good idea for every
couple. It only works if people respect each other and can work
cooperatively to find a solution.
Sometimes, couples who use collaborative family law do not reach an
agreement. If this happens, they must hire new lawyers to represent them
individually in court.
Collaborative family law can be expensive because the people involved
must have a lawyer. The cost will depend on how much they are paying
their lawyers. Legal Aid Ontario will not pay a lawyer to help a woman in
this process. This type of ADR is used only by those who can afford to
hire a lawyer.
In the survey of 37 Christian women, 23 were unable to define the term “alternative
dispute resolution” or didn’t give an answer.
More About Family Law Arbitration
The discussion on the previous page described the process of family law
arbitrations in general terms. Recently, there have been significant changes
in the rules about family law arbitrations. These rules are set out in the
Arbitration Act. Here are the most important things that the Arbitration
Act says about peoples’ rights:
• All family law arbitrations must follow Canadian or Ontario law or they
are not legal. For example, arbitrators can not rule that a husband can
take more than half of the value of the family’s property because
Canadian laws say that each spouse should get half of the value of the
property when a couple gets a divorce.
• A private decision made by someone who is not a family law arbitrator
is not legally binding and cannot be enforced.
• In family law arbitration, the Family Law Act is more important than the
Arbitration Act. Courts must use family law principles.
• All arbitration awards are “domestic contracts”. Courts should treat
arbitral awards the same way they handle domestic contracts.
• Any arbitral award about children must follow the “best interests of the
child” test. Arbitrators must consider the same things that family law
courts consider when they decide what is in the child’s best interest.
These things are listed in section 24 of the Children’s Law Reform Act.
• Women always have the right to ask the court for permission to appeal
an arbitral award. They cannot give up that right. If a woman challenges
the award, the court can substitute its own decision for the arbitral award.
The court may do this if the arbitral award says anything not related to
family law or if it orders something that the court would not have
ordered. Courts will also check that arbitral awards about custody and
access follow the Children’s Law Reform Act. The court will only enforce
orders that are in the best interests of the children.
• All family law arbitral awards must be in writing.
• Starting in April 2008, all family law arbitrators who are not lawyers must
take training in Canadian family law. All arbitrators must take training to
learn about domestic violence.
• Arbitrators must make sure that the process will be fair. To do this, they
must investigate whether there has ever been violence or abuse in a
relationship. They must also check that a woman and her former spouse
have equal power and control in their relationship. Although arbitrators
have the power to set up ways to protect a woman in these circumstances,
most people agree that arbitration does not work well if a spouse was
violent or abusive, if he has tried to bully or scare his partner, or if he
has taken advantage of her.
• Before starting arbitration, both people must sign a form that says they
got independent legal advice. The lawyer who gave the advice must also
sign the form.
• Arbitrators must report twice a year to the Ministry of the Attorney
General. They must report on every family law case they arbitrated in
that period. Arbitrators must also keep records of all arbitrations for at
least 10 years.
How is arbitration different from a private agreement?
Sometimes, women are pressured into asking someone they respect, like a
doctor or religious leader, to make a decision about a family law dispute.
As noted above, if that person is not an arbitrator, their decision is not
legally binding and cannot be enforced.
If a woman is worried that the person making decisions about her case is
not a real arbitrator, she can ask to see proof that they are qualified to do
this work. In Ontario, arbitrators who are not lawyers must have some
training in family law. Also, all arbitrators must have training in how to
recognize the signs of domestic violence.
How are arbitral awards enforced?
After arbitration, you can bring an application in the family court to
enforce the award. Once the application is filed, the court can decide to
enforce the arbitration award as if it were a court order if it meets certain
Advantages and disadvantages of arbitration
Some people say that arbitration is good because it is more efficient, less
formal, and less expensive than going to court. The process is flexible, and
people can choose who will arbitrate the dispute. But many others say that
arbitration is not a good way to resolve family law disputes. The arbitrator
has a lot of power and can make decisions that are unfair. Also, arbitration
may not work well for women because many women cannot afford a
lawyer. If a woman doesn’t have a lawyer, she may not know all of her
rights and may not know how to convince the arbitrator of the case.
Child Protection and Family Law
Ontario has a law, the Child and Family Services Act (CFSA), to protect
children from being mistreated. The law defines what is in the best
interests of children, and how to protect children, and make sure they are
well cared for.
The government funds child welfare agencies which are usually called
Children’s Aid Societies (CAS). Their job is to protect children from harm,
including neglect. CASs also place children for adoption and offers
supports to families. Their role is to work to help families stay together
and, in extreme cases, remove children from their homes.
Parents must protect children from harm and provide for their basic needs
like food and shelter. If the CAS has a reason to believe that a parent is
not doing this, it can investigate the family. After the CAS investigates, if
it believes that the child is in need of protection, it can remove the child
from the home.
What does “in need of protection” mean?
A child can be in need of protection if he or she:
• is left alone, is uncared for or is neglected;
• has been abused or is likely to be abused; or
• sees abuse between adults in the home.
Sometimes women who are being abused end up being investigated by
CAS. CAS does this because it is concerned that the adult abuse is
affecting the child’s safety and well-being.
Abuse includes physical, sexual, and emotional abuse. It does not matter
who is abusing the child. The law says parents must protect their children.
Even if they are not abusing the child, CAS can investigate if parents
knew or should have known about the abuse and did not try to stop it.
If a woman is being abused and the police are called, CAS may come to
the house. CAS representatives will ask her and the child questions. If
CAS believes that a woman is not doing what she should to protect the
child from harm, CAS may remove the child even though she is not the
How does CAS get involved with families?
Anyone who believes that a child may be in need of protection is
supposed to tell CAS. This is called the duty to report. All professionals
who work with children must call CAS if they suspect abuse or neglect.
This includes teachers, doctors, social workers, religious leaders, and day
care workers. If they do not report to CAS, they can be charged with a
The duty to report is ongoing. This means that even when a person has
already reported the abuse, she/he must report any other time there is a
suspicion that the child has been abused or neglected.
A family may also come to CAS’s attention in other ways, for example, if
someone in the family calls CAS for assistance. The police may also call
CAS if they have been to a family’s home because of reports that the
children’s mother is being abused by her partner.
What happens when CAS first gets involved?
Step 1: Screening
When someone calls CAS, it will do an initial screening to decide if it
needs to do anything else. This means that it will take some steps to look
into the report to decide whether it needs to become involved with the
family. Sometimes CAS will decide that it does not need to take any more
action at this point because it is satisfied that the child is well cared for.
Step 2: Investigation
After the screening step above, CAS may decide to investigate. If this
happens, CAS will visit the home and talk to the parents and child. CAS
can also interview people outside the home such as other family members,
teachers, or neighbours.
When CAS investigates, it is trying to decide if a child is in need of
protection. Being investigated by CAS is very serious. If parents do not
address CAS’s concerns, it may get more involved in their lives. Parents
should take steps that show they are trying to deal with the problems.
At the end of the investigation, CAS may decide that the child does not
need protection. If this happens, it will take no other steps.
Step 3: Plan of service
If CAS decides that a child is in need of protection, it must take the “least
disruptive course of action”. This means that, where possible, it will work
with the family to try to deal with the problems, and to leave the child in
In most cases where CAS is working with families, it will ask parents to
sign an agreement that says what they will do to make sure the child is safe.
This agreement is usually called a plan of service. If a woman has been
asked to sign a plan of service, she should get legal advice. CAS can
remove children from the home if a parent refuses to sign the plan of
service or if she signs it but does not follow the conditions.
After a parent signs a plan of service, CAS will usually stay involved with
the family for some time to make sure that the child is safe and well cared
for and that the parent is following the plan.
Step 4: Removing the child
If a parent refuses to do what CAS has asked or if CAS decides that the
child could be harmed, it may apprehend or remove the child from the
home. The child may be placed with a family member, in a foster home,
or in a group home.
Some kinds of abuse are also crimes. Many CAS offices have policies that
say they must report to the police any time someone tells them about
physical abuse and sexual abuse. The police will investigate the abuse and
may lay criminal charges. The criminal case will be in addition to the child
protection hearings. Criminal charges do not make the child protection
case go away.
Going to court on a child protection matter
Child protection proceedings are complicated. They move quickly. If a
child is removed, CAS must bring the case before a judge within five days.
If this has happened to a woman, she should get legal advice right away.
Some parents believe the idea that ‘spare the rod, spoil the child’ means
that they should discipline their children physically. Many of us were
disciplined at home and school by getting hit, and many of us were called
mean names and insulted as a form of punishment. But some kinds of
discipline are against the law and/or can trigger CAS involvement,
• verbally abusing children;
• hitting or tying up children;
• punishing children by refusing to give them food; and
• leaving children without someone who is old enough and able to take
care of them (Community Legal Education Ontario, 2007).
Discipline doesn’t have to involve physical pain or damaging words. When
we discipline in a safe way, we teach our children that problems and
stresses can be solved without physically or emotionally hurting others.
You can make your child take “time outs”, do extra chores, or lose
privileges like television and games when they misbehave. These things
take time, effort, and consistency, but they send the right message and they
Family Law Issues for Immigrant, Refugee, and Non-Status
Women who are immigrants to Canada face many challenges when their
relationship ends. A woman may:
• worry about whether she can stay in Canada;
• worry how she will support herself and her children if her spouse was
her sponsor and she leaves him;
• have trouble collecting support from her partner if he leaves the
• be afraid that her partner will try to take her children back to his home
country without her permission.
A woman’s immigration status is not legally relevant in family law. She can
apply for custody or support no matter what her immigration status is.
Although she has the same family law rights as any other woman, if she
does not have status and she comes to the attention of immigration
officials, she could get deported. To protect herself and her children, she’ll
need to know her rights.
1. Immigration Concerns
A woman’s right to stay in Canada depends on her immigration status.
If a woman is a permanent resident or landed immigrant when her
relationship ends, she cannot lose this status or be removed from Canada
because her relationship has ended even if her partner sponsored her to
come to Canada. Her sponsor is financially responsible for her for 3 years,
whether or not they stay together. If her partner cannot or will not
continue to support her, she can apply for social assistance to support
If a woman’s partner sponsored her to become a permanent resident from
inside Canada and her relationship ends before her application has been
accepted, she can apply to stay in Canada by making a Humanitarian and
Compassionate (H&C) grounds application. To be successful, she
must show that she has a strong connection to Canada and is able to
support herself. For this reason, it can be hard for a woman who is
receiving social assistance to succeed in getting permanent residence
status. She should get legal advice to make an H&C application.
Making an H&C application does not protect a woman from being
deported. Immigration can detain and deport her while she is waiting for
a decision on the H&C application.
Refugees and Persons Needing Protection
A woman may be in Canada as a refugee or a person needing protection.
If she has been found to be a Convention refugee or a person in need of
protection, she cannot be removed from Canada because her relationship
If her refugee claim is based on her partner’s situation and their
relationship ends before her hearing, she may be able to separate her claim
from his. If she has been abused by her partner, she can make a claim
for protection on this basis. To be successful, she must show that she is at
risk in her own country and that the government cannot or will not
protect her from the abuse.
If her refugee claim fails, she can make an H & C application (see above).
She can also apply for a pre-removal risk assessment (PRRA). This
process requires Immigration to consider the risk she would face if she
were sent back to her country.
No Legal Status
Some women may be here without legal status. This could be because their
temporary status expired or because they entered the country illegally. A
woman in this situation should get legal advice as soon as possible to
discuss what immigration claims may be available to her. Although she has
the same family law rights as any other woman, she could get deported if
she comes to the attention of immigration officials.
In response to the survey question, “Do you think a woman without legal status has
any rights under the Family Law Act?”, 43% of Christian women said no, didn’t
answer the question, or indicated that they weren’t sure.
If a woman has experienced abuse, immigration officials must consider
this when they process her immigration application.
Woman abuse is against the law in Canada. If the police believe that a
woman’s partner has assaulted her, they will lay a criminal charge against
him. They will lay the charge even if she doesn’t want them to. If the
police believe that the woman assaulted her partner, even in self-defence,
she may also be charged.
Criminal charges could affect the woman’s status and her partner’s status
and could lead to deportation Even if she is not charged, the police, the
Crown, or another court official could find out that she doesn’t have status
and tell Immigration. If this happens, she could be detained and deported.
If a woman is involved with criminal proceedings, she should get legal
advice right away.
2. Family Law Concerns
Immigrant, refugee, and non-status women have the same rights and
responsibilities as Canadian-born women under family law. A woman can
bring a claim for custody, access, child, and spousal support. She can ask
the court to award her a share in her family’s property on separation.
If a woman and her partner came to Canada from another country, family
law issues can be more complicated, especially if either of them decide to
move back home. Please read the previous sections about moving with
children, traveling with children, child abduction, and collecting support
when the payor lives outside of Ontario.
For Women and Leaders: Resources
Do not be overcome by evil, but overcome evil with good. (Romans 12:21)
Leaders Opening the Dialogue
It’s important to talk about issues of abuse, family breakdown, and other
related things in our churches. Many people look to their Christian
families and leaders for guidance. There are many ways this dialogue can
be opened in a way that’s safe, helpful, and inclusive of church attendees.
Bible study groups can look at passages in the Bible that are applicable
to issues of violence and abuse. There are many pieces of scripture that
speak about “looking after the orphans and widows in their distress” and
helping others in need (James 1:27). How could these apply to women and
children facing abuse in our congregations and broader communities?
Women’s meetings offer special opportunities to address issues of
violence against women and family law. Churches can contact local
women’s organizations that lead educational workshops with community
members and ask them to come into a women’s meeting. They can help to
introduce the issues, start discussions, and share community resources for
women experiencing violence. Women leaders can facilitate a debriefing
session afterwards so women can share their thoughts after the workshop
facilitator has left.
70% of surveyed Christian women indicated that information about family law issues
should be available in churches. Many said that it should be available “everywhere”.
It’s also important to open the topic of violence and family breakdown
with men. Men’s meetings give an opportunity for men to speak about
the issues together, to share their unique concerns, pressures, and
thoughts. Facilitators from organizations that work with men and deal
with abuse issues can be sought out to help in this process.
Children are never too young to learn and talk about healthy, respectful
In fact, studies show that children are too often taught to view abuse as
normal and okay from a young age. Using popular media as a starting
point for discussion and education is usually effective in children and
youth groups. Once again, local organizations that work with youth can
be accessed to help in this process. You can ask the group to discuss
questions such as:
• What kinds of violence are shown in the media, such as movies,
television, music, and video games?
• How are relationships between women and men shown in the media?
• What do you think are the “ingredients” of a good relationship that
honours God? How does what the media show compare to them?
• If someone you know was being abused at home or by a friend, what
could you do or say to the person?
As Christians, prayer is essential in our lives. When we learn about difficult
issues such as abuse, family breakdown, and grappling with the law, we go
to God and pray for guidance to deal with them. Prayer meetings are an
opportunity for us to pray together and to help our sisters and brothers
understand why we think an issue is important, and to encourage them to
pray and act on the issue as well.
How You Can Respond as an Individual
When we’re in need, we often go to our sisters and brothers at church for
help. Our church families are usually a great support to us and we value
helping each other out in a way that pleases God.
Some of us have had women ask us for help in dealing with an abusive
situation - some women and children have told us about facing physical,
emotional, sexual, financial, and/or spiritual abuse. It can be especially
difficult to know what to say. We may feel upset, shocked, sad, or angry
that someone we love is being hurt. We might feel tempted to have
unhelpful reactions, and we might not even know how our reactions can
make matters worse. But there are things that we can say to help.
“I believe you.” Women and girls who have gone through abuse are
often not believed. They’re often asked, “Are you sure you’re not making
this up?” and “Did he really hurt you?” A person who simply listens and
believes can be a wonderful support to a woman or girl experiencing
“It’s not your fault.” Women and girls are most likely to experience
abuse and are often judged when it happens to them. They are often
asked, “What did you do to make him mad?” But nobody should ever
have to live with abuse and nobody ever has the right to abuse another
person, no matter who they are - we all have to be responsible for our own
actions and reactions. There’s no excuse for abuse, and sharing that with
a woman or girl who has been abused can be a great relief to her.
“You’re not alone.” It’s a sad reality in this world, but women and girls
face physical, sexual, and emotional violence all the time. You can let a
woman or girl who has experienced violence know that a lot of other
people have gone through similar struggles - and they have survived.
“I’m sorry that happened to you.” You can comfort a woman or girl by
telling her that you’re sorry she was hurt. And it’s okay to feel sad and
upset that someone she cared for was abusive to her. Listening to a
woman or girl’s story can be difficult. You can get help or talk to someone
you trust to take care of yourself too - just remember to keep her situation
“I can help you get help.” There may not be a lot you can do to help a
woman or girl who has faced abuse and she needs to make her own
decisions about what she wants to do after being abused. But you can let
her know that, when she’s ready, you’ll help her find support and you’ll
stand beside her. There are several places that women and children can
contact to get help, including medical care, shelter, food, housing, and
counseling. Some resources are listed on pages 52 and 53.
“I’ll pray for you.” As Christians, we believe that prayer is powerful and
that God is able to do all things. You can tell the woman or girl being
abused that you will pray for her, and you can offer to pray with her.
Community Help for Ontario Women
When surveyed about their knowledge of where to find legal help, Christian women
indicated that they knew of some services, including Legal Aid and a variety of social
services. But 8 of them said they didn’t know where to go or didn’t answer the question.
24-Hour Emergency Numbers
• Emergency (police, ambulance, fire) 911
• Community Connection: 211
• Assaulted Women’s Helpline 1-866-863-0511 | 1-866-863-7868 (TTY)
• Distress Centres of Toronto 416-408-4357 | 416-408-0007 (TTY)
• Femaide (French Crisis Line) 1-877-336-2433 | 1-866-860-7082
• Kids Help Phone 1-800-668-6868
Important Legal Contacts
• Barbra Schlifer Clinic:
416-323-9149 or 416-323-1361 (TTY) | www.schliferclinic.com
• Community Legal Education Ontario: www.cleonet.ca
• Family Law Education for Women: www.onefamilylaw.ca
• Law Help Ontario: www.lawhelpontario.org
• Law Society of Upper Canada, Lawyer Referral Service:
1-800-668-7380 x5000 | www.lsuc.on.ca
• Legal Aid Ontario:
1-800-668-8258 | 1-866-641-8867 (TTY) | www.legalaid.on.ca (for
lawyer referrals, a list of community legal clinics, and more)
• Legal Line: 416-929-8400 | www.legalline.ca
Other Contacts and Websites
• Sexual Assault Centres: www.ocrcc.ca (for local centres, look in your
local telephone book)
• Sexual Assault/Domestic Violence Treatment Centres:
• Shelters for Women and Children: www.shelternet.ca (for local shelters,
look in your local telephone book)
• Ontario Association of Children’s Aid Societies (information on child
abuse and local child services): www.oacas.org
• Family Service Canada (lists local family service associations):
• Local Children’s Aid contacts: www.oacas.org
• Metropolitan Action Committee on Violence Against Women and
Children (METRAC): www.metrac.org
• Ontario Women’s Justice Network (provides information and analysis
on legal issues women and children experiencing violence often face):
• Settlement.org: www.settlement.org
Produced September 2008 by
The Metropolitan Action Committee on Violence Against Women
and Children (METRAC) is a community-based
organization dedicated to preventing
violence against women, youth, and children.
158 Spadina Road, Toronto, ON, M5R 2T8
1-877-558-5570 | 416-392-3031 (TTY) | firstname.lastname@example.org
www.metrac.org | www.owjn.org