Profile of family law cases in Canada, 2019/2020

When a family dynamic breaks down, several decisions need to be made concerning the children of the relationship, finances, housing and property, among other things. Some matters may be resolved privately between the parties, including by way of a separation agreement. However, in some cases, the parties may make use of a family dispute resolution process such as mediation or begin the court process.

Using data from the Civil Court Survey, this Juristat article will examine family law cases active in the Canadian civil courts in the 2019/2020 fiscal year. It will profile various case types where spouses or couples have experienced a family breakdown, which required the assistance of a court to dissolve (i.e. a marriage) or resolve (such as custody, access and/or support issues). Criminal court cases are out of scope for this survey.

Additional analysis is provided on the contentious nature of the case, the sex of the applicant and respondent, whether the parties were represented by legal counsel or self-represented, types of court activity that took place throughout the fiscal year and the average number of days it took a case to reach a first disposition.

It is expected that the COVID-19 pandemic will have had a significant impact on the Canadian civil justice system. The data provided in this article will establish a baseline to enable analysis of the impact of the pandemic on family law cases in the civil courts. This information will be provided in subsequent reports as those data become available.

Further, on March 1, 2021, the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.) was amended to "promote the best interests of the child, address family violence, help reduce child poverty and make the justice system more accessible and efficient". Specifically, terminology around custody and access was removed in favour of parenting arrangements, language some provinces adopted prior to the introduction of the amendments. The data included in this report were collected prior to the implementation of the March 1, 2021 amendments and as a result do not reflect the parenting terminology introduced therein.

This Juristat was produced with the support of the Department of Justice Canada.

Family cases account for nearly one-third of all civil court cases in Canada

There were just over 907,000 civil court cases active in the courts in 2019/2020, and family law cases accounted for nearly one-third (30%).

Family law cases involve divorces, parenting arrangements, support payments, child protection cases, family cases involving a civil protection application and various other family matters. The larger portion of active cases were non-family cases, including civil disputes, lawsuits for damages, employment actions, probate proceedings, and other claims involving money (Chart 1, Table 1).

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There were two active non-family cases for every one family law case each year since 2014/2015.^Note  However, while the number of newly initiated non-family cases showed an upward trend, the number of new family cases steadily declined each year. The largest year-over-year decline in new family cases was recorded in 2019/2020 (-7%) (Chart 2).

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Family law cases declined in 2019/2020

There were 275,296 family law cases active in the 10 provinces and territories^Note  reporting to the Civil Court Survey in 2019/2020 (Table 1), 6% fewer than the previous year. When child protection cases and family cases involving a civil protection application are removed, the total active family caseload for 2019/2020 was 228,758 (Table 2), down 7% from the previous year. Unless otherwise specified, child protection cases and family cases involving a civil protection application are excluded in further sections of this report due to the nature and specific rules that govern these case types.

Close to half (48%) of the active family law cases in 2019/2020 were newly initiated during the year while the remaining 52% were ongoing from a previous year.

A case is considered to be “active” in any year that court activity is recorded. There are three main types of activity in civil court cases: initiation activity^Note  which opens a new case in the civil courts, process events^{Note  Note}  such as document filings,^Note  pre-trial events^{Note  Note}  and hearings, adjournments^{Note  Note}  and trial hearings, which move the case forward through the civil process and disposition events,^{Note  Note}  including judgments^Note  and settlement agreements, which dispose of part, or all of a case.

Filing a court document, attending a conference in person or remotely, settling a dispute or receiving a judgment from the court are all events that trigger the active status of a case in a fiscal year. It is important to note that family cases may return to court periodically to amend the terms of a court order.

The family cases examined here recorded court activity in 2019/2020. The cases were either newly initiated or ongoing from a previous year.

Divorce cases represent almost half of the active family caseload in 2019/2020

Overall, divorce cases made up 47% of the active cases in 2019/2020 (Table 3.1). Custody/access cases, support only cases, and other and unknown family cases, accounted for the other 53% (Chart 3).

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Divorce cases without issues were the most predominate active case type (33%) during the year (Table 3.2), followed by custody/access (19%) (Table 4) and divorce cases with issues^{Note  Note  Note}  (14%) (Table 3.3). Support only cases represented 8% (Table 5) of the active cases, while other^Note  and unknown family cases made up the remaining 25%.

Family cases are more active than non-family cases

Family cases are typically more active in the courts than non-family cases due to the number of issues that require resolution. More court activity is recorded in family cases involving multiple or complex issues which contribute to an increase in the courts caseload, resources and time. Family cases with multiple issues are also more likely to be reactivated when new issues require resolving or a previous order requires amending (Allen 2014).

Family cases active in 2019/2020 reported an average of 11 events per case in 2019/2020, five more events than in non-family cases (6). Process events made up the largest portion of events (9 events) with document filings, whether in person or remotely, representing over three quarters (78%) of those events (Table 2).

Pre-trial events are important steps in a family case that allow the parties to disclose relevant documents, to settle issues that may arise outside of the main application and to provide the parties with an opportunity to resolve some or all of the issues in the case prior to trial. Active family cases reported an average of one pre-trial event each during 2019/2020. It is important to note that the reporting of pre-trial events varies across jurisdictions and therefore, reporting limitations may exist as indicated previously.  

Parties in a family case may ask for an appearance date to be re-scheduled or adjourned to a new date with permission from the court. There are also circumstances in which the court will be required to request an adjournment for the case in the event of a scheduling conflict with another case or a court closure. Family cases active in 2019/2020 reported an average of one adjournment per case.

Family cases reached a first disposition faster in 2019/2020 than the year before

When a family dispute is resolved either between the parties or by the court, a verbal or written judgment or order may be rendered by the court and placed on the court file. Depending on the number of issues requiring resolution, it is not uncommon for parties in a family case to receive multiple decisions from the court that either dispose of part, or all, of a case.

Overall, the median length of time for family cases to reach a first disposition was 79 days, two days quicker than in 2018/2019 (81 days). In 2019/2020, family cases reported receiving an average of two judgments per case (Table 2).

Divorce cases

Based on 20 million Canadians surveyed by the General Social Survey in 2017, 56% of adults aged 25 to 64 were married and 6% were separated or divorced at that time (Statistics Canada 2019a; Statistics Canada 2019b).

Finances, infidelity, incompatibility or abuse may be some of the reasons that contribute to a marital breakdown. However, in order to legally end a marriage, the spouses must establish the breakdown of their marriage by providing evidence to the court that they have lived separate and apart for at least one year, one spouse has committed adultery, or one spouse has treated the other spouse with physical or mental cruelty and made it impossible to continue living together, prior to obtaining a divorce order (Divorce Act).

Divorce cases remain the predominate active family case type

As noted above, divorce cases made up almost half (47%) of the total active family cases in 2019/2020 (Chart 3, Table 3.1). Just over two-thirds (71%) of the divorce cases were reported without custody, access or support issues (Table 3.2) while close to one-third (29%) were reported with issues related to custody, access and/or support (Table 3.3).

New divorce cases accounted for 46% of the newly initiated family cases in 2019/2020. Divorce cases without issues represented 40% of the new cases. Similarly, divorce cases ongoing from previous years with activity reported in 2019/2020 composed 48% of the total number of active family cases ongoing from a previous year. More divorce cases without issues continued into 2019/2020 from a previous fiscal year (56%) compared to divorce cases with issues (44%).

Divorce cases with issues reported slightly longer disposition times than divorce cases without issues

If reasonable child support arrangements have been made and other issues resulting from the marital breakdown are resolved privately between the spouses, a divorce may proceed through the court simply on the application and written evidence with no need for the parties to appear before a judge in person or remotely. For these reasons, divorce cases without issues (8 events) (Table 3.2) reported seven fewer events than divorce cases with issues (15 events) (Table 3.3).

There was an average of one pre-trial event and one adjournment event per divorce case with issues, compared to divorce cases without issues which reported an average of less than one pre-trial and adjournment events in the year.

Due to the number of issues that require resolution throughout the case, divorce cases with issues had an average of two more judgments (3) than divorce cases without issues (1) and one more judgment than the average family case (2).

Around half (47%) of divorce cases without issues that reached a first disposition did so within the first three months, a further 40% in over three months to one year and the remaining 13% in over one year. In comparison, divorce cases with issues took a little longer to resolve, with a little over one-third (38%) reaching the first disposition within the first three months, 44% in over three months to one year and 17% in over one year.

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Cases involving custody and/or access issues

Determination of custody and access arrangements often both need adjudication. According to the Divorce Act,^Note  when determining custody and access issues, a judge shall consider the best interests of the child or children who formed part of the relationship.

Custody issues can be divided into living arrangements, where a child will primarily reside and with which parent, and decision-making, whether one parent will have primary decision-making authority for the child on issues such as health, education and religion or whether this decision-making authority will be shared. A judge may order that custody of a child be granted to one or both parents.

Additionally, access orders can be granted to allow the parent with whom the child does not primarily reside with parenting time. The court order will stipulate who may spend time with the child, how often and for how long. Some access types may include liberal/reasonable, supervised, no access, scheduled/specified or mixed arrangements. Grandparents and non-family members may also apply for access to children.

Cases involving custody/access issues represented 19% of active family cases in 2019/2020 (Table 4). It is important to note that the custody/access case types examined here may include married or common-law couples who are separated but do not include applications for divorce. Requests for support may also be involved in these cases.

Close to one-third (31%) of the active custody/access cases were new in 2019/2020 and 28% were continuing on from 2018/2019, while the remainder (41%) were initiated in 2017/2018 or earlier.

Custody/access cases are the most active type of family case

Custody/access cases tend to involve more court activity and remain in court longer than the other family case types due to the number of issues requiring resolution (Allen 2014). The case length can have a significant impact not only on the courts time and resources but also the families involved.

In 2019/2020, custody/access cases represented just under one-third (31%) of the total family events recorded by the courts.

There was an average of 18 events per case identifying custody and/or access issues, three more events than divorce cases with issues (15) and seven more events than the average in family cases (11) (Table 4).

There was an average of two pre-trial events, one adjournment, and four disposition events per custody/access case.

Of the 39,888 custody/access cases that reported a disposition event such as a judgment, 68% reached the first disposition on one or more of the issues in the case within the first three months, 25% in over three months to one year and 6% took over one year.

Cases involving support issues only

Support is a type of relief that can be requested by a party to a family case following a divorce or separation. Child support obligations must be paid by the parent with whom the child does not primarily reside to ensure that children are supported financially by both parents (Department of Justice Canada 2016). The Child Support Guidelines can help calculate the amount of support that must be paid. However, the amount may be adjusted over time should the financial circumstances of the payor or recipient change.

Spousal support payments can be requested by one spouse for financial support after the breakdown of a marriage or common-law relationship. The Spousal Support Advisory Guidelines can help a judge consider the amount, if any, a spouse is entitled to receive.

It is important to note that the support only case types examined here may include married or common-law couples who are separated but do not include applications for divorce.

There were just over 19,000 support only cases active in the family courts in 2019/2020, representing 8% of the total active family caseload. Similar to custody/access cases, there were more support only cases ongoing (64%) from previous years than newly initiated cases (36%) (Table 5).

Child support issues were reported in 63% of the support only cases active in the year, while 19% of cases reported issues of spousal support. Both child and spousal issues were reported in 7% of the active support only cases. More than one type of support may be requested in a case, and therefore, the proportions will not equal 100%.

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Many support issues can be resolved within the first three months

More than two-thirds of events (75%) in support only cases were process events (9), made up primarily by document filings (6). Similar to other family case types, there was an average of one pre-trial event and one adjournment event per support only case and three disposition events (Table 5).

Of the 15,724 support only cases that had a disposition event, over half (55%) reached the first disposition event within the first three months, 31% in over three months to one year and 14% in over one year.

Uncontested versus contested family cases

For the purpose of this analysis, a case was considered contested by the opposing party if a responding document, such as an answer opposing the relief sought in the case, was recorded on this file. Uncontested cases did not report a responding document while contested cases did.

Most family cases are uncontested

Three quarters (75%) of active family cases in 2019/2020 were uncontested,^Note  48% of which were divorce cases^Note  (Chart 4).

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Divorce cases without issues were mostly uncontested (88%), while divorce cases with issues revealed almost even proportions between contested (51%) and uncontested cases (49%).

Custody/access cases were 56% uncontested and 44% contested compared to support only cases which were mostly uncontested (74%).

Applicant and respondent profiles

The applicant in a family case is generally the party who brought the matter to court. The opposing party to the application is known as the respondent.^Note 

While the Civil Court Survey attempts to collect the sex^Note  of the parties in civil court cases, in 2019/2020, only 15% of active family cases reported the sex of the applicant and only 16% reported the sex of the respondent. In the remaining cases, the information was unavailable, unknown, or, in a small number of cases, related to a government or an organization.

The following analysis is based on reported male and female applicant and respondents only and exclude Ontario, Alberta and Yukon due to reporting limitations. Caution should be exercised when interpreting these data due to the small number of cases for which this information is available. Child protection cases and family cases involving a civil protection application are included here. However, it is important to note that the applicant in a child protection case is most often a government entity.

More applicants are female and more respondents are male

Of the reported male and female applicant and respondent types only in 2019/2020, 67% of applicants in family law cases were female and 66% of respondents were male.

Female applicants were more prominent in family cases than male applicants across the provinces and territories included in this analysis. In contrast, the respondents in family cases were mostly male (Chart 5).

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Most applicants in child protection cases are a government entity

The following analysis is based on reported applicants and respondents in the context of child protection cases only and exclude applicants and respondents in Alberta and Yukon, as well as respondents in Northwest Territories due to limitations in the reporting of these data.

The applicant in a child protection case is most often a government entity who is made aware of a situation in which a child requires protection and applies to the court for supervision or protection of that child.

Of the known applicants (74%) in child protection cases, nearly all were the government or an organization (99.5%) while slightly more respondents were male (35%) or female (28%).

Legal representation in family cases

The following analysis is based only on cases which reported a known type of representation and should be interpreted with caution due to the small number of cases for which this information in available. Nunavut is excluded due to limitations in the reporting of this data.

While the Civil Court Survey attempts to collect the legal representation status of applicants and respondents in civil court cases, in 2019/2020, only 27% of active family cases reported a representation status other than unknown or not applicable for the applicant and only 12% reported it for the respondent, as at the end of the fiscal year.

Applicants and respondents in family cases can choose whether or not to hire a lawyer for their case. Though it is generally advisable to obtain representation when going to court (Ontario Court of Justice 2018), some litigants may not be able to afford legal representation for part or all of the proceeding and represent themselves.

In the following section, family cases active in 2019/2020 were examined to determine whether the applicant and respondent were represented or self-represented^Note  in the fiscal year. However, it is possible for the parties to obtain legal representation later on in the case. Cases involving child protection cases and family cases involving a civil protection application are included in this section.

The majority of applicants and respondents in family cases are self-represented

Overall, more family case litigants in active cases were self-represented (58%) than not (42%) in 2019/2020.

When analyzing applicants only, almost half (47%) were represented by a legal-aid lawyer (3%), a non-legal aid lawyer (44%) or duty counsel (0.3%). Another 1% had non-legal representation, such as a family member, which will not be analyzed further in this section. The remaining 53% of applicants were self-represented.

The number of self-represented applicants exceeds the number of represented applicants across the active family case types examined in this report, with the exception of support only, child protection and other family cases.

Similarly, about two-thirds (70%) of respondents in family cases were self-represented and almost one-third (30%) were represented at least one time in the fiscal year (Chart 6).

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Most applicants and respondents are represented by legal counsel in child protection cases

The applicant, such as the Children’s Aid Society in Ontario, and the respondent parent in a child protection application are generally both represented by legal counsel. It is also possible that the child of the application will be represented by counsel from the Office of the Children’s Lawyer, or a similar entity in the other provinces and territories, if the court deems it necessary for the child to be represented (Department of Justice 2012). The parent in a child protection application has a right to respond but may choose not to do so.

In addition to support only and other family cases, child protection cases also reported more represented parties (91%) than not (9%) in 2019/2020. Based on 72% of active child protection cases that reported a type of legal representation, almost all (97%) of the applicants and close to two-thirds (67%) of respondents were represented during the year. The high proportion of represented parties, compared to other family cases, may reflect the involvement of the government as the applicant. These data exclude litigants in the context of child protection cases in Yukon, Northwest Territories and Nunavut due to limitations in the reporting of this data.

Self-represented litigants in family cases are increasing

In 2020, 57 Ontario judges were surveyed on their perceptions of the number of represented and unrepresented litigants appearing before the courts over the past decade. The survey revealed the judges’ perception that more litigants in family law cases appeared before the courts representing themselves rather than with representation (Birnbaum and Bala 2020).

Data from the Civil Court Survey supports the judges’ survey. The number of self-represented applicants active in the family courts rose by 11 percentage points between 2014/2015 (41%) and 2019/2020 (52%) while self-represented respondents increased from 68% to 70% in that time (Chart 7).

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Summary

This report profiles divorce cases, custody/access cases, support only cases, child protection cases and family cases involving a civil protection application active in the civil courts in 2019/2020. The profiles establish a baseline of family law court data which will enable future analysis of the impact of the COVID-19 pandemic, as well as amendments introduced in the March 1, 2021 Divorce Act, on family law cases in the Canadian civil courts.

The 2019/2020 family law caseload was mostly made up of divorce cases with and without issues, followed by child protection cases, family cases involving a civil protection application and cases involving custody, access and support issues.

Family law cases were more active in the courts and reached a first disposition faster than general civil cases in 2019/2020. Overall, most family cases, including protection cases, reached a first disposition within the first three months.

Detailed data tables

Table 1 Number of active civil court cases, by type and reporting jurisdiction, 2019/2020

Table 2 Profile of active family cases, by reporting jurisdiction, 2019/2020

Table 3.1 Profile of active divorce cases, by reporting jurisdiction, 2019/2020

Table 3.2 Profile of active divorce cases without issues, by reporting jurisdiction, 2019/2020

Table 3.3 Profile of active divorce cases with issues, by reporting jurisdiction, 2019/2020

Table 4 Profile of active custody/access cases, by reporting jurisdiction, 2019/2020

Table 5 Profile of active support only cases, by reporting jurisdiction, 2019/2020

Table 6 Profile of active family cases involving applications for civil protection orders, by reporting jurisdiction, 2019/2020

Table 7 Profile of active child protection cases, by reporting jurisdiction, 2019/2020

Survey description

In 2019/2020, the Civil Court Survey (CCS) included data for Prince Edward Island, Nova Scotia, New Brunswick, Ontario, Saskatchewan, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut. Newfoundland and Labrador, Quebec and Manitoba are not yet reporting to the survey. Collection for the year began in June 2020 and covered the April 1, 2019 to March 31, 2020 (2019/2020) fiscal year.

The data examined includes only the provinces and territories that are capable of reporting the information and only the cases that recorded a meaningful value for the variable. Unknown and not applicable values were excluded from some portions of the analysis, as noted.

Data for the CCS are based on the administrative records stored in civil court automated information systems in the ten provinces and territories listed above. Given that the data are derived from records originally kept for non-statistical purposes, complete survey information is not always available for all provinces and territories. In particular, some provinces and territories may not be able to provide full information on secondary issues for a case. For example, information related to issues such as custody, access, support and property may not always be available from the court information systems and, as such, may be under-reported. The degree of under-reporting is unknown. Information is provided by province and territory to support analysis of individual provinces or territories. However, comparisons of data by province and territory are not recommended as reporting is not consistent for all case types.

References

Allen, Mary. 2014. "Family law cases in the civil courts, 2012/2013." Juristat. Statistics Canada Catalogue no. 85-002-X.

Birnbaum, Rachel and Nicholas Bala. 2020. “Judicial perspectives on self-represented litigants in family courts.” The Lawyer’s Daily. (accessed January 25, 2021).

Conroy, Shana. 2021. "Family violence in Canada: A statistical profile, 2019." Juristat. Statistics Canada Catalogue no. 85-002-X.

Department of Justice Canada. 2012. “Best practices where there is family violence.” Criminal Law Perspective. (accessed March 1, 2021).

Department of Justice Canada. 2016. Child Support Fact Sheet. (accessed January 8, 2021).

Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.). Parliament of Canada.

Ontario Court of Justice. 2018. Representing Yourself at Your Family Law Trial. A Guide. (accessed February 23, 2021).

Ontario Superior Court of Justice. 2012. Statement of Objectives. Prioritizing Children Initiative. (accessed February 10, 2021).

Statistics Canada. 2019a. “Being married or common-law in Canada.” Infographic. Statistics Canada Catalogue no. 11-627-M.

Statistics Canada. 2019b. “Separation or divorced in Canada.” Infographic. Statistics Canada Catalogue no. 11-627-M.

Statistics Canada. 2021. “Survey of Maintenance Enforcement Programs: Child and spousal support, 2019/2020.” The Daily. Statistics Canada Catalogue no. 11-001-X.