By Rebecca Winninger, Senior Associate Research Lawyer, Lam Family Law*

As family lawyers, we tend to assume that provincial law applies to spouses who never married, while the Divorce Act applies to married spouses. The first point is true – provincial law applies exclusively to spouses who never married. For married and divorced spouses, however, there are exceptions where provincial support and/or parenting legislation may apply:

  • No Divorce Claim: Firstly, and most obviously, the Divorce Act does not apply to married spouses if neither party claims a divorce. There is no jurisdiction to order corollary relief under the Act if there is no divorce claim: Schleifer v. Schleifer, 2009 CanLII 63958 (ON SC), at para 18. Parenting and support claims in this situation are dealt with under provincial law.

  • Final Support or Parenting Order Before Divorce Order: Courts in Ontario and in other provinces have held that it is not possible to obtain a final order for corollary relief under the Divorce Act before a divorce order is made: Bayrekdar v. Al Zaher, 2025 ONSC 2713 (CanLII), at para 8; Sauve v. Watson, 2021 ONSC 4188 (CanLII), at para 13; Knee v Knee, 2018 MBCA 20 (CanLII), at para 23; & Yu v. Jordan, 2012 BCCA 367 (CanLII), at para 47.

    It is common for parties to settle support and parenting issues, and leave the divorce to be concluded at a later date. If so, the consent order must be under provincial legislation, since the divorce has not yet occurred. To make a support or parenting order under Ontario’s legislation in a divorce proceeding, the court must first lift the statutory stay contained at s. 36(1) of the Family Law Act and/or s. 27 of the Children’s Law Reform Act. See Sauve v. Watson, 2021 ONSC 4188 (CanLII), at paras 14-15, where Justice MacEachern found that an existing order was made under provincial legislation, and lifted the stay retroactively (as the court should have done when the order was made).

  • Motion to Change Order Made Under Provincial Law: Continuing with the examples above, once there is a support or parenting order under provincial legislation, any future motions to change will be under provincial law, regardless of whether the parties subsequently divorced: Bayrekdar v. Al Zaher, 2025 ONSC 2713 (CanLII), at para 83(c). However, there is an interesting wrinkle to this rule, since courts have said that an existing order under provincial legislation does not prevent a party from starting a new proceeding for corollary relief under the Divorce Act. There is no onus to show a material change in circumstances (Durso v. Mascherin, 2013 ONSC 6522 (CanLII), at para 14) since the proceeding is not a motion to change, and the new order under the Divorce Act supersedes the order under provincial law (Houle v. Trottier, 2012 ONSC 6661 (CanLII), at para 13). This holding was recently repeated in Bayrekdar v. Al Zaher, 2025 ONSC 2713 (CanLII), at para 83(d), although the rule seems at odds with the overarching family law principles of finality and avoiding multiple proceedings.

  • Corollary Relief Not Dealt With in Divorce: Courts have also consistently held that if the parties are divorced, but child support was not dealt with in the divorce proceeding, then a parent may later choose to bring their support claim under provincial law or the Divorce Act: French v. Mackenzie, 2003 CanLII 2023 (ON SC), at para 9 & Durso v. Mascherin, 2013 ONSC 6522 (CanLII), at para 14; see also Cheng v. Liu, 2017 ONCA 104 (CanLII), at paras 42-43. This is not a situation where the Divorce Act does not apply, but where it does not apply exclusively to divorced spouses.

    The existing case law on this issue concerns child support, but the same reasoning could arguably apply to spousal support and parenting claims.

  • Foreign Divorce: The Divorce Act does not apply to former spouses who were divorced in a foreign country. This conclusion flows partly from the division of powers under the Constitution Act, 1867. The federal government’s jurisdiction to legislate in family law flows from its power to make laws about divorce in Canada. The federal government would arguably encroach on provincial jurisdiction if it passed a law allowing for support and parenting claims in the absence of a Canadian divorce: Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA), at para 59 & Virani v. Virani, 2006 BCCA 63 (CanLII), at paras 60-61. Assuming Parliament does have the power to make family law legislation governing spouses who divorced outside Canada, Parliament would not do so without “clearly signalling its intention in that respect”: Okmyansky v. Okmyansky, 2007 ONCA 427 (CanLII), at paras 35-36.

    Therefore, provincial legislation applies to parenting and child support claims of spouses divorced abroad. Spousal support is not available in Ontario under either the Divorce Act or provincial law, although courts are revisiting this issue and their interpretation of provincial law may change: Vyazemskaya v. Safin, 2024 ONCA 156 (CanLII), at para 44 & Rasaei v. Bahman, 2025 ONSC 2074 (CanLII), at paras 27-106.

  • Direct Support Claim by Child: Lastly, a child of married or divorced spouses can only apply directly for child support under provincial law (since only “spouses” and “former spouses” can pursue child support under the Divorce Act). Even if there is an existing support order under the Divorce Act which binds the parents, a child can still bring a claim under provincial legislation, although the Divorce Act order may affect the decision in the child’s application: Seary v. Seary, 1994 CanLII 3828 (ON SC), at paras 8-15.

When preparing minutes of settlement and draft orders, it’s important to be aware of the exceptions set out above, and carefully consider which law will govern the order. Ontario’s support and parenting legislation is very similar to the Divorce Act in most respects, but there are differences, and the court will want to know which law to apply in any future motions to change.

*with thanks to Kayleigh Pink for her suggestions and edits.