Experienced Family Lawyers Representing Clients in Same-Sex Divorces

In Canada, The Civil Marriages Act was enacted in 2005 to extend to same-sex couples the legal capacity to marry for civil purposes.  This was the last step in the long process to enable same-sex couples to marry in Canada.

The flip side of obtaining the right to marry is the right to divorce. This is where matters became complicated for same-sex couples who married in Canada but who later left Canada. As per the Divorce Act, in order to obtain a Canadian divorce, at least one of the spouses has to have lived in Canada for at least one (1) year – this is frequently referred to as the “residency requirement” or “one-year residency requirement”.

The Effect of the “Residency Requirement”

The “residency requirement” has been problematic for same-sex couples who came to Canada to marry because their own place of residence does not allow gays and lesbians to marry.  In effect, these people were stuck in marriage limbo if and when the marriage fell apart unless their home jurisdiction came to recognize same-sex marriage and divorce.

By way of example, recently we had a file wherein a lesbian couple came to our firm seeking a divorce. This couple resides in Louisiana, where same-sex marriage and divorce are not recognized.  However, the couple had come to Canada eight years ago specifically to marry.  The couple never resided in Canada.   This couple however could not end their marriage in Louisiana, because Louisiana did not recognize their same-sex marriage. Until Bill C-32 came into effect, they also could not divorce in Canada, because they did not meet the residency requirement of the Divorce Act.

Civil Marriage of Non-Residents Act

Parliament recognized the injustice of this conundrum and responded with a new divorce process set out in Bill C-32, the Civil Marriage of Non-Residents Act.  On August 16, 2013, the then Minister of Justice and Attorney General of Canada, Peter MacKay, announced:

With this Bill we have addressed an unfairness faced by couples who came to Canada to get married in good faith, but who then found they were unable to dissolve their marriage because their Canadian marriage is not recognized in their country or state of residence.

Clause 4 of Bill C-32 deals with “Dissolution of Marriage for Non-Resident Spouses” and, as set out in the summary for Bill C-32:

…establishes a new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.

Essentially, with the passage of this Act, same-sex couples residing in jurisdictions where same-sex marriage is not recognized and who were married in Canada finally have the right to divorce in Canada. However, the process may be more complicated. Grounds for divorce are also more limited – the parties must have been separated for at least twelve months, which is the same time frame as heterosexual couples. 

For Assistance in Obtaining a Same-Sex Divorce in Canada, Contact our Family Law Lawyers at one of one Our Six Offices throughout Ontario

Legal advice is strongly recommended for any individual seeking to obtain a divorce in Canada pursuant to Bill C-32. Contact Gelman & Associates today to learn how our experienced family law lawyers can protect your rights and assets during separation and divorce. With six offices conveniently located throughout North York, downtown Toronto, Mississauga, Scarborough, Aurora and Barrie, we are easily accessible by transit and off-highway. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.

From the Blog

Latest posts from the Gelman & Associates blog

22

Interim Spousal Support and Child Support

An Ontario court recently considered a case where the mother sought interim child support and spousal support from the father. In granting the mother’s motion, the court outlined the factors that it must take into account when making an interim order for support.   What Happened? The parties were married in January 2005 and separated …


Read More
14

Ongoing Battle Over Whether Indigenous Law Should Apply over Ontario Family Law in Support Dispute Continues

We previously blogged about a contentious child support and spousal support dispute, in which an Indigenous father argued that band law should apply in lieu of Ontario family law where disputes involved Indigenous families. The original trial judge disagreed with the father’s position, and the father appealed further. The appeal is scheduled to be heard …


Read More
09

Variation of Support in The Face of a Separation Agreement

An Ontario court recently considered a spouse’s request to reduce the child support and spousal support obligations that had been set out in the parties’ separation agreement. What Happened? The parties began living together in June 1983, married in December 1985, separated in August 2009 and divorced in January 2012. The parties had three children …


Read More

Contact

Questions? Send us an email

Contact Form - Home
Sending