Same-sex marriages have been legal across all of Canada since 2005. The Supreme Court of Canada ruled that all provinces can recognize same sex unions, including common-law marriages. The gender-neutral definition of marriage does not distinguish between same or opposite sex couples.
In Ontario, same-sex marriages have been legal since 2001. In 2004, the Divorce Act was amended to include such marriages. Currently, the same divorce laws apply to all couples, whether heterosexual or same-sex.
When a same-sex couple’s marriage breaks down, they can choose to live separately and/or get a divorce. If they have been legally married in Canada, they have to get a legal divorce in case they wish to remarry.
An experienced family lawyer, divorce lawyer or separation lawyer can help you with the right information, advice and advocacy.
Same-Sex marriages: Legal and Common-law
Gay and same-sex couples are considered equal under the Marriage Act. If the couple has lived in a marriage-like relationship for more than three years, they are considered to be a common-law couple regardless of the gender of partners.
All provinces in Canada allow adoption of children by same-sex couples.
Sexual orientation has no bearing on child custody rulings and courts are mainly focused on the child’s best interests. Canadians can also sponsor their same-sex common-law or civil union partners for family-class immigration provided they meet all the other specified requirements.
When common-law relationships end, there is no need to seek a legal divorce. The only reason why couples may seek legal advice/assistance is to settle issues like child-support, custody and access, spousal support, division of property etc.
If same-sex couples seek divorce, they can petition for spousal support based on the length of their marriage and differences in income. Common-law couples may not automatically qualify for such support, but they can move a petition and attempt to justify such a claim with the requisite documentation and evidence.
Property division for married couples is not the same as that for common-law couples, regardless of gender. For married couples, increase in property value during the marriage has to be shared equally. Common-law relationships are excluded from the provisions of the Family Law Act. Hence, the partner who seeks a share of property has to prove that his/her contribution in terms of money, time, knowledge, effort, etc has enhanced the value of the property.
Issues may arise if a legally married same-sex couple moves from a jurisdiction where such unions are recognized to one where they are not. This means that they may not benefit from their own jurisdiction’s systems for dividing property, establishing support, etc. However, a government bill, the Civil Marriage of Non-Residents Act allows non-residents to divorce in a Canadian court if their home jurisdictions prohibit it was introduced and passed in 2013.
Common-law same-sex couples would greatly benefit if they have a cohabitation agreement that sets out their rights to property, parenting and child support.
Getting a divorce can be complicated and confusing, especially as it usually happens in the background of heightened emotions and sensitivities. An experienced, knowledgeable divorce lawyer or separation lawyer can help you deal with such issues.