With the passing of The Civil Marriages Act in 2005, same sex marriage was finally legalized in Canada.
The laws with respect to same-sex (married) couples who are in the process of a separation and/or divorce are identical to heterosexual married couples as long as the parties reside primarily in Canada.
Divorce
Same-sex couples may obtain a divorce in Canada pursuant to the Divorce Act, provided they habitually reside in one of the provinces for at least twelve months. Just like heterosexual couples in the process of getting a divorce, same-sex couples must also satisfy one of the three grounds for divorce.
The 3 grounds for divorce are:
a) Living separate and apart for a period of at least 12 months.
b) Cruelty; whether it’s physical or mental cruelty making it intolerable to continue living with one another.
c) Adultery.
Spousal Support
Spousal support laws also apply in the same fashion for both heterosexual married couples and married same-sex couples. Depending on the specific facts of your case, entitlement to spousal support may arise.
There are three grounds for entitlement:
a) Compensatory claims, which are based on a spouse’s economic loss or disadvantage as a result of the role they took on during the marriage. For example, a spouse who stays at home to raise the children, while the other spouse is working full time. Another example would be moving for your spouse’s career or financially supporting your spouse’s education or training.
b) Non compensatory claims, which involve claims based on need and include claims where there is a significant decline in the standard of living from when the parties were married.
c) Contractual claims; which includes spousal support provisions covered in formal marriage contracts (a prenuptial agreement or post-nuptial agreement) but also includes implied or informal agreements such as immigration sponsorship agreements.
Division of Property and Equalization of Net Family Property
The laws with respect to the division of property and equalization under the Family Law Act are also the same for both married heterosexual couples and married same-sex couples. In order to determine the amount of equalization payable from one spouse to another, each spouse must provide a comprehensive list of assets and debts owned by them at the date of marriage (if available) and the date of separation. Determining the equalization payment is an onerous and difficult task. As such, hiring a lawyer to assist you with this process is always recommended.
Decision-Making Responsibility (Custody), Parenting Time (Access) and Child Support
The laws in relation to custody (which is now called decision-making responsibility), access (which is now called parenting time) and child support are no different for same sex couples. However, things become a little bit more complicated when the child is not biologically yours or is not your adoptive child. For more information, please call Gelman and Associates to assist you further.
