2023 was a consequential year for Canadian family law. The Supreme Court of Canada weighed in on domestic agreements, Ontario's Court of Appeal issued a landmark ruling on family violence, multiple provinces overhauled their family law statutes, and Canadian courts responded to the rise of generative AI with a series of practice directions. Here is what happened and why it matters.
Court Decisions
Anderson v. Anderson, 2023 SCC 13
The only family law case heard by the Supreme Court of Canada in 2023 addressed when courts must give effect to informal domestic agreements in dividing family property. Justice Karakatsanis wrote that domestic contracts should generally be "encouraged and supported by courts, within the bounds of the law, absent a compelling reason to discount them." Although the case arose under Saskatchewan's Family Property Act, the analysis applies across Canada wherever an agreement does not meet formal statutory requirements. For practitioners, this reinforces the importance of accurate property valuations and net family property calculations — the starting point from which any informal agreement is assessed.
Ahluwalia v. Ahluwalia, 2023 ONCA 476
Arguably the most significant Canadian family law decision of 2023. The Ontario Court of Appeal rejected the creation of a new tort of "family violence." At trial, Justice Mandhane had created and applied the novel tort, awarding the wife $150,000 in damages. Justice Benotto, writing for a unanimous panel, held that existing torts — battery, assault, intentional infliction of emotional distress — are "flexible enough to address the fact that abuse has many forms," including "recurring and ongoing abuse, intimidation, domination and financial abuse." The Court reduced damages to $100,000 but affirmed that tort claims belong in family law proceedings and that "intimate partner violence must be recognized, denounced and deterred." The decision confirms that family violence claims can be pursued within family proceedings using existing tort law, and that violence findings directly affect parenting time determinations under the Divorce Act's best interests factors.
Property Division: Trust Claims, Occupation Rent, and Excluded Property
Several appellate decisions clarified property division principles. In Karatzoglou v. Commisso, 2023 ONCA 738, the Ontario Court of Appeal held that a non-titled spouse does not have standing to advance a trust claim against a third party to increase the other spouse's net family property for equalization. In Chhom v. Green, 2023 ONCA 692, the Court held that occupation rent does not require "exceptional circumstances" — it must simply be "reasonable," potentially signalling a lower threshold for occupation rent orders going forward.
In British Columbia, Cottrell v. Cottrell, 2023 BCCA 471, clarified the difficulty of valuing discretionary trust interests for property division — expert evidence of a beneficial interest's value is essential. Cohoon v. Stobo, 2023 BCCA 479, held that excluded property used to pay down family debt loses its excluded status if the use was intended as a gift.
Income Imputation in Alberta
Although decided in late 2022, Peters v. Atchooay, 2022 ABCA 347, reshaped Alberta income imputation practice throughout 2023. The Alberta Court of Appeal replaced the longstanding Hunt v. Smolis-Hunt test with a new three-part framework: (1) Is the parent intentionally under-employed or unemployed? (2) Do any exceptions apply? (3) Should judicial discretion to impute income be exercised? The burden shifts once the applicant makes a threshold showing, which directly affects how child support is calculated in Alberta.
Calculate child support, spousal support, and property division in minutes.
Legislative Changes
Federal Developments
The Department of Justice published a Revised User's Guide to the Spousal Support Advisory Guidelines in May 2023, updating five years of SSAG case law. There are now over 230 appeal court decisions and 2,900 trial decisions citing the SSAG. In November 2023, amendments to the Family Orders and Agreements Enforcement Assistance Act took effect, allowing release of income information through federal trace and locate services to assist in determining accurate support amounts. The federal child support table amounts, last updated in November 2017, remained unchanged throughout 2023.
BC Bill 17: Family Law Amendment Act, 2023
The most significant provincial legislation of the year received Royal Assent on May 11, 2023. Key changes:
- Companion animals: BC became the first Canadian jurisdiction to address pet custody in family law. Courts now consider how the pet became part of the family, how much each spouse cared for it, and any history of family violence or animal cruelty.
- Pension division reform: Modernized rules for locked-in retirement accounts, life income funds, survivor benefit waivers, and commuted value calculations.
- Trust presumptions removed: New section 81.1 removes the presumption of advancement and the presumption of resulting trust in determining property ownership under the FLA.
Manitoba's New Family Law Act
Effective July 1, 2023, Manitoba repealed its Family Maintenance Act and replaced it with The Family Law Act and The Family Support Enforcement Act. The new legislation harmonizes terminology with the federal Divorce Act, replacing "custody" and "access" with "parenting time" and "decision-making responsibility," and allows step-parents, family members, and grandparents to seek parenting time or contact orders.
Alberta and Ontario
Alberta announced a $5 million investment in December 2023 to expand pre-court family justice services, launching a Family Resolution Hub and reporting a 36% increase in matters resolved through dispute resolution programs. Ontario introduced a new Consolidated Provincial Practice Direction for Family Proceedings effective June 15, 2023, updating electronic filing procedures, early financial disclosure expectations, and Dispute Resolution Officer programs across 12 court locations.
AI and Legal Technology
Canadian Courts Respond to Generative AI
In May 2023, a New York lawyer was sanctioned after submitting briefs with fabricated case citations generated by ChatGPT — the Mata v. Avianca case. The incident triggered a wave of Canadian court practice directions:
- Manitoba Court of King's Bench (June 23) became the first Canadian court to require disclosure when AI has been used in filed materials.
- Supreme Court of Yukon (June 26) required parties to advise the Court when relying on AI for legal research, including what tool was used and for what purpose.
- Alberta Courts (October 6) issued a notice focusing on submission integrity when using large language models.
- Federal Court (December) announced it will not use AI in decision-making without public consultation.
For family law practitioners, the message is clear: AI tools can assist with research and drafting, but every citation must be independently verified. Purpose-built family law tools that apply the correct legislative framework for each province will continue to outperform general-purpose AI for support calculations and court form preparation.
BC Early Resolution Results
BC's early resolution process for family law demonstrated strong results in 2023: 57% of families resolved issues without going to court, and Surrey Provincial Family Court saw a 61% decline in new family law cases and a 45% decrease in total court time.
Access to Justice by the Numbers
Statistics Canada reported 252,516 active family cases in 2022/2023, up 2.7% from the prior year, with nearly 45% being divorce cases. Over half of family law litigants continue to be self-represented — a figure that underscores the need for accessible tools that help people understand their rights and calculate support accurately.
Divorcepath Milestones in 2023
- Property division calculations: We launched our property division calculator in June, allowing users to calculate equalization payments under Ontario's Family Law Act.
- Updated support tables: Our child support and spousal support calculators were updated to reflect the latest federal and provincial tax changes.
- Court form improvements: We expanded our library of supported court forms and improved auto-population of financial data across related forms.
- Platform reliability: We invested in platform performance and reliability, reducing calculation times and improving the user experience.
Looking Ahead to 2024
Several developments bear watching. BC's Bill 17 provisions will continue to come into force, with pension division changes taking effect in January 2025 (the trust presumption changes under section 81.1 took effect on Royal Assent, May 11, 2023). The Hague Convention on the International Recovery of Child Support takes effect on February 1, 2024, with Ontario and Manitoba as the first participating provinces. The growing role of AI practice requirements in courts across Canada will continue to shape family law practice.
At Divorcepath, we are continuing to build tools that make family law more accessible and efficient — expanded provincial coverage for property division, new collaboration features, and continued improvements to our support calculators. Thank you to everyone in the family law community who used Divorcepath this year.
