Specializing in Divorce and Separation in Ontario, Canada |
Same Sex Couples Family Law
Tremendous legal developments for same-sex couples should have profound effects on the way family lawyers practice.
There have been some tremendous legal developments for same-sex couples in the last few years, the biggest of which came on July 20, 2005 when Supreme Court of Canada Chief Justice Beverley McLachlin gave the Queen’s consent to Bill C-38, making Canada the fourth country in the world to legally allow same-sex marriage.
This legislation will have profound effects on the way family lawyers practice. Firstly, in our opinion, it is going to make the work of our office and other family law offices much easier, as the law of marriage and divorce will essentially remain the same, other than the fact that prior legislation will now be amended to include wording which is inclusive of same-sex couples.
Our office has sensed this impending change a while ago, and has in fact already worked with a number of same-sex clients. As such, our office has gained extensive experience in dealing with the following issues, which are important for both lawyers and same-sex clients to put their minds to when attending to the relationship concerns of same-sex couples.
We realize that we are only able
to touch on a few of the many legal and social issues involving
same-sex couples, however, if you have any further questions, please
feel free to contact the office, as we do offer free ½ hour
initial telephone consultations.
Domestic Contracts & Same-Sex Couples
Just recently, the FLA permitted cohabitation agreements between two unmarried people of the same sex, and reserved marriage contracts for opposite sex married couples only. As such, though cohabitation agreements eventually became marriage contracts upon an opposite-sex couple’s marriage, the same did not ring true for same sex couples.
In light of the recent legislative developments with regards to same-sex marriage, same-sex couples who have old cohabitation agreements should now have these reviewed and/or revised by a lawyer prior to marrying. Family lawyers must put their minds to the same issues they put their minds to with respect to negotiating agreements for opposite sex couples, that is anticipating a future marriage, and possible breakdown.
In turn, same sex couples should put their minds towards the possibility of negotiating prenuptial agreements with their fiancées prior to marrying.
Divorce & Same-Sex Couples
The Divorce Act defines spouse as “either a man or a woman who are married to each other.”
Though Justice Ruth Mesbur ruled that the definition of “spouse” as: “either man or woman who are married to each other” in the Divorce Act was unconstitutional in September 2004, until recently, same-sex couples seeking divorces were still concerned that the government may oppose or appeal the granting of the divorce.
This will no longer be a concern, as the definition of marriage in the Act will now be redefined in the legislation itself.
Property Division & Same-Sex Couples
Similarly, until recently, only married opposite sex couples had the right to equalize property upon marriage breakdown. With the amendments to the Family Law Act, same sex married couples will have this right as well. Therefore, it is important to assess whether or not to include or waive an equalization payment when drafting a same-sex cohabitation agreement.
Matrimonial Home As it Relates to Same-Sex Couples
As all lawyers know, the matrimonial home receives special treatment upon marriage breakdown. This is another issue that same-sex couples and the lawyers who represent them will have to consider when drafting domestic contracts.
Support & Same-Sex Couples
In the past, same-sex couples only had an obligation for support if they had cohabited for more than three years (or less, if children were involved, which has frequently not been the case in same-sex relationships as of yet). However, as a result of the legislative amendments, these obligations and rights to spousal support will immediately apply to same sex couples who marry. This is yet another reason why old same sex cohabitation should be revisited.
Parenting / Custody Issues in Relation to Same-Sex Couples
Though not influenced directly by the legislative amendments, this area of the law has been a sensitive area for same-sex couples. The legislative amendments will further strengthen the recent trend towards increasing parenting/custody and access rights to same-sex parents in all areas of the country, eventually leading towards legislation being introduced which would allow same-sex adoptions in every province, as is already the case in Ontario, a development which began with the 1995 decision of the Honourable Justice J.P. Nevins invalidating a provision of the Child and Family Services Act which prevented four lesbians from legally adopting their partner’s children.
Abuse in Same-Sex Relationships
Currently, very limited services exist for abused same-sex partners. For example, many women’s shelters are open to all women, and therefore, an abused lesbian partner may not feel comfortable staying at or seeking assistance from woman’s shelter, as her abusive partner will likely access to the shelter as well.
Abused same sex partners do have some avenues to turn to, however. It is important to seek help from a counselor who is qualified/trained in same-sex issues. For services near you, please look at:
Other Online Resources
Equal Marriage for Same-Sex Couples
GayCanada - Canada's Largest Online Gay & Lesbian Community
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