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

25

Requests For Relocation on an Interim Basis

What happens when one party wants to relocate to another city with their child(ren)? In a recent case, an Ontario court considered a mother’s motion to move from one area of Ontario to another. The Background The parties had two children, ages three and six. In May 2018, the father was charged with several criminal …


Read More
19

The Latest With The Courts And COVID-19

The rapid spread of COVID-19 has resulted in a significant change in the day-to-day lives of all Canadians. Jobs, childcare, school, and almost every other facet of life has been impacted. The judicial system is no exception. Family law is no exception to this. Suspension of services as Ontario Superior Court of Justice The province’s …


Read More
11

How Does the Court Determine a Child’s “Habitual Residence”?

In a recent Ontario case, the court considered the interesting question of how to determine a child’s “habitual residence” for the purpose of an application under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Background The parties began dating in May 2017, started living together in June 2017, and …


Read More

Contact

Questions? Send us an email

Contact Form - Home
Sending