Family Law Act (RSPEI 1988, c F-2.1)

A court may grant a divorce on the sole ground that the marriage has broken down. Breakdown is established by proving the spouses have lived separate and apart for at least one year, or that the other spouse committed adultery or treated the applicant with physical or mental cruelty making cohabitation intolerable. The one-year separation ground is used in the vast majority of Canadian divorces.

Effective: 2021

Spouses who have separated may resume cohabitation for up to 90 days in an attempt to reconcile without restarting the one-year separation clock. If the reconciliation fails and they separate again within that 90-day window, the original separation date still counts. However, if they live together for more than 90 days total, the one-year period restarts.

Effective: 2021

A divorce petition may be filed in the province where either spouse has been ordinarily resident for at least one year immediately before the proceeding is started. In PEI, this means at least one spouse must have lived on Prince Edward Island for a full year before filing. The Supreme Court of PEI (Family Section) has jurisdiction over divorce proceedings.

Effective: 2021

Defines 'net family property' as the value of all property owned on the valuation date minus debts and liabilities, minus the value of property owned at the date of marriage. Certain property is excluded from the calculation, including gifts and inheritances from third parties, personal injury damages, and life or accident insurance proceeds — provided these can be traced. If net family property calculates to less than zero, it is deemed to be zero.

Effective: 2024

If a spouse transfers property for inadequate or no consideration with the intent to defeat a property claim, the transferred property is deemed still owned by the transferor for equalization purposes. A transfer made within 90 days before separation is presumed to have been made with the intent to defeat a claim unless the transferor proves otherwise. The court can revest the property if the transferee had notice of the intent.

Effective: 2024

When spouses divorce, separate, or a marriage is annulled, the spouse with the lower net family property is entitled to one-half the difference between the two net family properties. The court may order an unequal division if equalization would be unconscionable — considering factors such as intentional depletion of assets, a marriage shorter than five years, disproportionate debts for the family, or any written agreement. The stated purpose is to recognize that child care, household management, and financial provision are joint responsibilities entitling each spouse to equal sharing.

Effective: 2024

The court may order one spouse to pay the equalization amount to the other, provide security for payment, make installment payments over up to ten years, or delay payment for up to ten years to avoid hardship. The court may also order that specific property be transferred to or vested in a spouse. These powers give the court flexibility to structure equalization in a way that avoids forcing the immediate sale of assets like the family home.

Effective: 2024

Both married spouses have an equal right to possession of the family home regardless of who holds title (s. 20). Neither spouse may sell, mortgage, or encumber the family home without the other's consent or a court order (s. 22). The court may order exclusive possession of the family home to one spouse (s. 25), considering factors including the best interests of children and the financial position of each spouse. These protections apply only to married spouses — common-law partners have no statutory family home rights in PEI.

Effective: 2024

In any equalization application, each party must serve on the other and file with the court a sworn statement disclosing all property and debts as of the date of marriage, the valuation date, and the date of the statement, plus all property disposed of in the preceding two years (or during the marriage, whichever is shorter). Failure to comply fully and accurately will result in the court awarding costs against the non-complying spouse.

Effective: 2024

In all proceedings under the Children's Law Act, the best interests of the child are the primary consideration. The court must give primary consideration to the child's physical, emotional, and psychological safety, security, and well-being. This principle governs every parenting decision made under PEI provincial law, whether the parents were married or unmarried.

Effective: 2024

The court may make a parenting order providing for parenting time and decision-making responsibility on application by either or both parents, or by a person who stands in the place of a parent. A parenting order replaces the older concepts of 'custody' and 'access' with rules about which parent the child spends time with and who makes major decisions about the child's health, education, culture, and religion.

Effective: 2024

Parenting time must be consistent with the best interests of the child, and the court may allocate decision-making responsibility to one parent, both parents, or another person. Each person with parenting time has exclusive authority to make day-to-day decisions during their parenting time. Any person with parenting time or decision-making responsibility is entitled to request information about the child's well-being, health, and education from the other.

Effective: 2024

A parent who intends to relocate must provide notice to any other person who has parenting time, decision-making responsibility, or contact with the child (s. 35). The court considers additional best interest factors specific to relocation, including the reason for the move, its impact on the child's relationships, and the proposed plan for maintaining parenting time (s. 36). The burden of proof falls on the relocating parent to demonstrate the move serves the child's best interests (s. 37).

Effective: 2024

For divorcing spouses, the federal Divorce Act provides parenting orders that allocate parenting time and decision-making responsibility. The court considers the same best interest factors as the provincial Children's Law Act, including each parent's willingness to support the child's relationship with the other parent, the child's needs and views, family violence, and any civil or criminal proceedings. The best interests analysis under the federal and provincial Acts is substantively the same.

Effective: 2021

Every spouse has an obligation to provide support for the other spouse in accordance with need, to the extent the spouse is capable. For support purposes, 'spouse' is defined broadly to include not only married couples but also common-law partners who have lived together in a conjugal relationship for at least three years, or who have a child together. This gives common-law partners the same access to spousal support as married spouses in PEI.

Effective: 2024

Every parent has an obligation to provide support for an unmarried child who is a minor, or who is enrolled in a full-time program of education, or who is unable to withdraw from parental charge due to illness, disability, or other cause — to the extent the parent is capable. This obligation does not extend to a child aged 16 or older who has voluntarily withdrawn from parental control.

Effective: 2024

The court may order a person to provide support for a dependant, considering all circumstances including: current and future assets and means of both parties, capacity to contribute to one's own support, capacity to provide support, age and health, needs relative to the accustomed standard of living, measures available for self-sufficiency, and obligations to support other persons. Spousal conduct is generally not considered unless it is so unconscionable as to constitute a gross repudiation of the relationship.

Effective: 2024

Once entitlement to support is established, the court may order periodic payments (for a limited or indefinite period), lump sum payments, property transfers, or orders respecting the family home. The court may also make interim support orders, retroactive support orders, and order that support payments be indexed to inflation annually. Where applications for both child support and spousal support are before the court, child support must be given priority.

Effective: 2024

A support order may be modified, varied, suspended, or discharged if the court is satisfied there has been a material change in circumstances — meaning a change that, if known at the time of the original order, would likely have resulted in a different amount. Either party may bring a variation application. The court considers the same factors as on the original application.

Effective: 2024

PEI adopts the Federal Child Support Guidelines with minor modifications. Child support amounts are based on the paying parent's gross income, the number of children, and the province of residence, using mandatory tables. Special or extraordinary expenses (Section 7 expenses) such as child care, health care, extracurricular activities, and post-secondary education may be shared proportionally to income. PEI has a Child Support Recalculation Service that can automatically adjust amounts annually based on updated income information.

Effective: 2024

For divorcing spouses, the federal Divorce Act allows the court to order spousal support in periodic or lump sum amounts. The court considers the condition, means, needs, and circumstances of each spouse, but cannot consider marital misconduct. Support orders must serve four objectives: recognize economic advantages or disadvantages from the marriage, apportion financial consequences of child care, relieve economic hardship from the breakdown of the marriage, and promote economic self-sufficiency within a reasonable period.

Effective: 2021

To file for divorce in PEI, at least one spouse must have been ordinarily resident in the province for at least one year immediately before filing. The petition is filed in the Supreme Court of PEI (Family Section) in Charlottetown. There is no additional provincial residency requirement beyond the federal one-year rule.

Effective: 2021

Rule 70 of the PEI Rules of Civil Procedure governs divorce actions. A divorce is commenced by filing a Petition for Divorce (Form 70A). Parties must file sworn financial statements disclosing income, assets, and debts. Divorce petitions can be filed electronically by emailing documents to scfiling@courts.pe.ca. The Registrar issues the certificate of divorce once the judgment is final.

Effective: 2024

The PEI Family Law Act includes provisions encouraging mediation. The Family Court Conciliation Office provides Child Focused Parenting Plan Mediation services to help parents settle parenting time and decision-making responsibility disputes. Mediation is voluntary and uses a neutral third party to help parents reach solutions in the children's best interests. PEI also recognizes collaborative family law as an alternative dispute resolution process.

Effective: 2024

Under the 2021 Divorce Act amendments, legal advisers must encourage spouses to try family dispute resolution processes — including mediation, negotiation, and collaborative law — to resolve matters, unless doing so would be inappropriate (such as in cases involving family violence). The court must also consider whether the parties attempted alternative dispute resolution before proceeding to trial.

Effective: 2021

PEI provides an administrative child support recalculation service. If a support order or agreement includes a recalculation clause, a Recalculation Officer can annually recalculate the amount based on updated income information without going back to court. If the recalculated amount would change by $5 or more per month, both parties are notified and may object or seek a court variation within a prescribed time.

Effective: 2024

A justice of the peace may issue an emergency protection order (EPO) without notice to the abuser if family violence has occurred and the situation is serious or urgent. An EPO can remove the abuser from the home, prohibit contact with the victim, supervise removal of belongings, and require the abuser to continue paying rent or mortgage. EPOs last up to 90 days and must be reviewed and confirmed by a judge within five working days. Applications can be made by phone or other telecommunication.

Effective: 2024

For longer-term protection beyond an EPO, a Supreme Court judge may make a victim assistance order within ten days of the application. These orders can include all the same provisions as an EPO plus arrangements for children's care and any other terms the judge considers appropriate. Family violence under the Act includes physical violence, sexual violence, threats, property damage, forcible confinement, and deprivation of necessities of life.

Effective: 2024

The PEI Family Law Act allows a spouse or former spouse who is living separate and apart (with no reasonable prospect of reconciliation) to obtain a restraining order. The order requires the other party to refrain from molesting, annoying, or harassing the applicant or children in their care. This is a civil remedy separate from the criminal law and from the Victims of Family Violence Act protections.

Effective: 2024

PEI recognizes three types of domestic contracts: marriage contracts (s. 51) for married or engaged couples, cohabitation agreements (s. 52) for unmarried partners living together, and separation agreements (s. 53). All must be in writing, signed, and witnessed (s. 54). Provisions regarding children are always subject to the best interests of the child (s. 55). A court may set aside a domestic contract if a party failed to disclose significant assets or debts, did not understand the contract's nature or consequences, or on other contract law grounds.

Effective: 2024

The 2021 Divorce Act amendments define family violence broadly to include physical abuse, sexual abuse, threats, harassment, psychological abuse, financial abuse, failure to provide necessities, and killing or harming a family pet. Courts must consider family violence when making any parenting order. Legal advisers must screen for family violence, and the court considers how violence affects a parent's ability to care for the child and the child's safety.

Effective: 2021

Part V of the PEI Family Law Act abolishes the common law doctrine that husband and wife are one legal person. Each spouse can own property, enter contracts, and sue or be sued independently. This is a foundational provision that enables the separate property and equalization regime in Part I of the Act.

Effective: 2024