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

18

Am I Your Biological Father? Paternity Tests and Child Support

An Ontario court recently considered an interesting case where the man sought an order directing the child to submit to a paternity test.   The Parties’ Story The parties began seeing each other in March 2008. According to the man, in July 2008, the woman left the apartment for three days and would not tell him …


Read More
13

Is a Judge Obligated to Read All Materials Filed in a Family Law Case?

The Ontario Superior Court recently considered the position of a father who was appealing a final child support order on the grounds that the motion judge who had granted the order had not read all of the materials that had been filed prior to making the decision about support. The Parties The parties at issue …


Read More
04

Emerging Technologies and Domestic Abuse

The New York Times this week reported on the alarming phenomenon of domestic abusers using smart home technologies, including Wi-fi connected locks, lights, cameras, thermostats and speakers, as a tool in harassing, watching, and controlling their spouses or partners. Smart Home Technologies Used for Abusive Aims In recent years, technologies including digital assistants such as …


Read More

Contact

Questions? Send us an email

Contact Form - Home
Sending