In Canada, family law is primarily statute-based. Matters of marriage and divorce are within the exclusive jurisdiction of the federal government under section 91 (26) of the Constitution Act, 1867 and is legislated under the Divorce Act. The provinces have exclusive jurisdiction over the solemnization of marriage under section 92 (12) of the Constitution Act, 1867, as well as jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights under section 92 (13) of the Constitution Act, 1867 and jurisdiction over matters of a private nature under section 92 (16) of the Act.
Child support is determined by the federal Child Support Guidelines, subject to exceptions. The amount of support is a function of the payor's income and the number of children in need of support.
Special and extraordinary expenses enumerated in section 7 of the Child Support Guidelines, such as certain medical, employment, health, education, and extracurricular expense, may be ordered by the court. The requirement of such expenses are that they must be extraordinary when considering the combined income of the parties and nature of the cost. The expenses must also be necessary with respect to the best interests of the child and must be reasonable means and needs of the parent and child.
The entitlement and value of spousal support varies greatly depending on the circumstances. There are three general categories or grounds of entitlement: compensatory, non-compensatory, and contractual. A compensatory approach acknowledges that in most marriages one party tends to suffer economic
disadvantage from the marriage. The disadvantaged party may be compensated to the point of returning both parties to the point they were before the marriage breakdown. Compensation is measured on the degree of contribution to the marriage, sacrifice, and hardship. Contract-based support is based on what is agreed between the parties in their separation agreement or marriage contract. The non-compensatory basis focuses on the mutual obligation of support created by the marriage.
In 2005, the federal government released the Spousal Support Advisory Guidelines which were meant as a means of estimating support based on income. It has no binding effect in law, but rather is used as a tool for negotiations and settlement. The guidelines distinguish between spouses with children and without children.
