Which laws apply to your case

There are two types of laws (statutory or statute-based and common-law or case-based).

The two statutes, laws passed by government, that may apply to your family law case are:

  • the Divorce Act, which is a federal law, and may only be used in Supreme Court by people who were married to each other, and
  • the Family Relations Act, which is a provincial law, and may be used regardless of marital status. It can generally be used in either Supreme Court or Provincial Court, except for those parts of it that deal with property, which can only be used in Supreme Court.

Throughout this website, you'll find references to these statutes. You need to know which law you want to use when you go to court. The laws you need to use will affect whether you go to Supreme Court, Provincial Court, or both. If you go to Supreme Court, your court documents must say which statutes support your case.

Common law or "case law" refers to those previously decided cases that develop the principles of family law and interpret the statutes. There are many good resources for researching case law. Talk to family duty counsel to see if you need to do such research for your case. You can also get help from a librarian or pro bono lawyers.

These laws help the judge/master decide how to deal with the issues that arise in each case.

Divorce is covered by the Divorce Act. You must use this law in the Supreme Court to get a divorce.

Child support, custody, access, and spousal support are covered by both the Divorce Act and the Family Relations Act.

If you're married, you can use the Divorce Act in Supreme Court to deal with these issues in addition to, or as an alternative to the Family Relations Act.

Property issues must be resolved in Supreme Court, using the Family Relations Act if you were married, or using case law if you weren't married.

Note: Property division can be complex, especially if you weren't married to your partner. There are important time limits involved that you need to be aware of. Get legal advice as soon as possible if you have property issues that need to be resolved. See also the LSS publication Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce.

Practically speaking, there isn't much difference between the Divorce Act and the Family Relations Act and how using either one or the other affects the judge's decisions about child support, custody, and access. Spousal support, however, can be affected and guardianship as a distinct right is only available under the Family Relations Act. Talk to a lawyer about how each of these statutes may affect your case. See Who can help for how to find someone who can help you understand how both laws work.

Tip: For an audio clip and chart with more information, see Which laws apply to your family law case?

Note: If you weren't married to your partner and you need support for yourself, you must start your court action within one year of separating.

Money paid by one party to the other party as financial support. Support can be paid for a former spouse or for any or all children.
Can refer to where and with whom a child lives, or where a child lives and the rights and responsibilities of a parent regarding the child in his or her care.
Generally means the time children spend with the parent they do not usually live with. However, access is not limited to the parent who does not have custody — any person can apply for access to a child (including grandparents, aunts and uncles, and other relatives).
The responsibility for making major decisions for children about such things as what kind of education, health care, or religious training they will receive, and how to manage anything the children may own, such as property or money.

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