15.2 (1) Spousal support order — A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

(2) Interim order — Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

(3) Terms and conditions — The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

(4) Factors — In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(5) Spousal misconduct — In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

(6) Objectives of spousal support order — An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

15.3 (1) Priority to child support — Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

(2) Reasons — Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

(3) Consequences of reduction or termination of child support order — Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

17. (1) Order for variation, rescission or suspension — A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

(2) Application by other person — A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

(3) Terms and conditions — The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

(4) Factors for child support order — omitted

(4.1) Factors for spousal support order — Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

(5) to (6) omitted

(7) Objectives of variation order varying spousal support order — A variation order varying a spousal support order should

(a) recognize any economic advantages or disadvantages to the former spouse arising from the marriage or its breakdown;

(b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.

(8) [Repealed 1997, c. 1, s. 5(5).]

(9) omitted

(10) Limitation — Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

(a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

(b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

FAMILY LAW ACT PROVISIONS (ONTARIO)

2 (10) Act subject to contracts — A domestic contract dealing with a matter that is also dealt with in this Act prevails unless this Act provides otherwise.

29. Definitions — In this Part,

“dependant” means a person to whom another has an obligation to provide support under this Part;

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of a man and woman who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

33. (1) Order for support — A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(2) Applicants — An application for an order for the support of a dependant may be made by the dependant or the dependant's parent.

(3) An application for an order for the support of a dependant who is the respondent's spouse, same-sex partner or child may also be made by one of the following agencies,

(a) the Ministry of Community and Social Services in the name of the Minister;

(b) a municipal corporation, including a metropolitan, district or regional municipality, but not including an area municipality;

(d) a band approved under section 15 of the General Welfare Assistance Act; or

(e) a delivery agent under the Ontario Works Act, 1997,

if the agency is providing or has provided a benefit under the Family Benefits Act, assistance under the General Welfare Assistance Act or the Ontario Works Act, 1997 or income support under the Ontario Disability Support Program Act, 1997 in respect of the dependant's support, or if an application for such a benefit or assistance has been made to the agency by or on behalf of the dependant.

(4) Setting aside domestic contract — The court may set aside a provision for support or a waiver of the right to support in a domestic contract or paternity agreement and may determine and order support in an application under subsection (1) although the contract or agreement contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(8) Purposes of order for support of spouse — An order for the support of a spouse or same-sex partner should,

(a) recognize the spouse's or same-sex partner's contribution to the relationship and the economic consequences of the relationship for the spouse or same-sex partner;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse or same-sex partner to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

(9) Determination of amount — In determining the amount and duration, if any, of support for a spouse, same-sex partner or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent's career potential;

(k) [Repealed 1997, c. 20, s. 3(3).]

(l) if the dependant is a spouse or same-sex partner,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's or same-sex partner's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse or same-sex partner has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse or same-sex partner has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) in the case of a spouse, any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) in the case of a same-sex partner, any housekeeping, child care or other domestic service performed by the same-sex partner for the respondent or the respondent's family, as if the same-sex partner were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the support of the respondent or the respondent's family.

(vi) the effect on the spouse's or same-sex partner's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

(10) Conduct — The obligation to provide support for a spouse or same-sex partner exists without regard to the conduct of either spouse or same-sex partner, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

34. (1) Powers of court — In an application under section 33, the court may make an interim or final order,

(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;

(b) requiring that a lump sum be paid or held in trust;

(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;

(d) respecting any matter authorized to be ordered under clause 24 (1) (a), (b), (c), (d) or (e) (matrimonial home);

(e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant's benefit;

(f) requiring that support be paid in respect of any period before the date of the order;

(g) requiring payment to an agency referred to in subsection 33 (3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order;

(h) requiring payment of expenses in respect of a child's prenatal care and birth;

(i) requiring that a spouse or same-sex partner who has a policy of life insurance as defined in the Insurance Act designate the other spouse or same-sex partner or a child as the beneficiary irrevocably;

(j) requiring that a spouse or same-sex partner who has an interest in a pension plan or other benefit plan designate the other spouse or same-sex partner or a child as beneficiary under the plan and not change that designation; and

(k) requiring the securing of payment under the order, by a charge on property or otherwise.

(2) Limitation on jurisdiction of Ontario Court (Provincial Division) — The Ontario Court (Provincial Division) shall not make an order under clause (1) (b), (c), (i), (j) or (k) except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge, and shall not make an order under clause (d).

(3) Assignment of support — An order for support may be assigned to an agency referred to in subsection 33 (3).

(3.1) Same — An agency referred to in subsection 33(3) to whom an order for support is assigned is entitled to the payments due under the order and has the same right to be notified of and to participate in proceedings under this Act to vary, rescind, suspend or enforce the order as the person who would otherwise be entitled to the payments.

(4) Support order binds estate — An order for support binds the estate of the person having the support obligation unless the order provides otherwise.

(5) Indexing of support payments — In an order made under clause (1) (a), other than an order for the support of a child, the court may provide that the amount payable shall be increased annually on the order's anniversary date by the indexing factor, as defined in subsection (6), for November of the previous year.

(6) Definition — The indexing factor for a given month is the percentage change in the Consumer Price Index for Canada for prices of all items since the same month of the previous year, as published by Statistics Canada.

37. (1) Application for variation — An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(d) an agency referred to in subsection 33(3).

(2) Powers of court: spouse and parent support — In the case of an order for support of a spouse, same-sex partner or parent, if the court is satisfied that there has been a material change in the dependant's or respondent's circumstances or that evidence not available on the previous hearing has become available, the court my,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order under section 34 that the court considers appropriate in the circumstances referred to in section 33.

38.1 (1) Priority to child support — Where a court is considering an application for the support of a child and an application for the support of a spouse or same-sex partner, the court shall give priority to the support of the child in determining the applications.

(2) Reasons — Where as a result of giving priority to the support of a child, the court is unable to make an order for the support of a spouse or same-sex partner or the court makes an order for the support of a spouse or same-sex partner in an amount less than it otherwise would have, the court shall record its reasons for doing so.

(3) Consequences of reduction or termination of child support — Where as a result of giving priority to the support of a child, an order for the support of a spouse or same-sex partner is not made or the amount of the order for the support of a spouse or same-sex partner is less than it otherwise would have been, any material reduction or termination of the support for the child constitutes a material change of circumstances for the purposes of an application for the support of the spouse or same-sex partner or for variation of an order for the support of the spouse or same-sex partner.

(4) Non-application of limitation — Subsection 50(1) does not apply to an action or application for the support of a spouse or same-sex partner in the circumstances set out in subsection (3).

50. (1) Limitation — No action or application for an order for the support of a spouse or same-sex partner shall be brought under this Part after two years from the day the spouses or same-sex partners separate.

(2) Idem — If the spouses or same-sex partners provided for support on separation in a domestic contract, subsection (1) does not apply and no action or application for an order for the support of a spouse or same-sex partner shall be brought after default under the contract has subsisted for two years.

52. (1) Marriage contracts — A man and a woman who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their affairs.

(2) Rights re matrimonial home excepted — A provision in a marriage contract purporting to limit a spouse's rights under Part II (Matrimonial Home) is unenforceable.

53. (1) Cohabitation agreements — Two persons of the opposite sex or the same sex who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and

(d) any other matter in the settlement of their affairs.

54. Separation agreements — Two persons of the opposite sex or the same sex who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs.

55. (1) Form of contract — A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

56. (1) Contracts subject to best interests of child — In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

(1.1) Contracts subject to child support guidelines — In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract or paternity agreement pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract or agreement.

(2) Clauses requiring chastity — A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable, but this subsection shall not be construed to affect a contingency upon marriage or cohabitation with another.

(3) Idem — A provision in a domestic contract made before the 1st day of March, 1986 whereby any right of a party is dependent upon remaining chaste shall be given effect as a contingency upon marriage or cohabitation with another.

(4) Setting aside domestic contract — A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

58. Contracts made outside Ontario — The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that,

(a) a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario's internal law;

(b) subsection 33 (4) (setting aside provision for support or waiver) and section 56 apply in Ontario to contracts for which the proper law is that of a jurisdiction other than Ontario; and

(c) a provision in a marriage contract or cohabitation agreement respecting the right to custody of or access to children is not enforceable in Ontario.

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