Same Sex Family Law Issues

Gay and lesbian couples have unique rights and responsibilities upon separation and divorce that require a knowledgeable and experienced lawyer that understands the law.

If you are separating from a same-sex relationship, you will face a unique set of challenges that require knowledgeable and experienced representation. Our team of highly skilled Kitchener family law lawyers can assist you with all of your legal needs with regard to the breakdown of a relationship, or those seeking to obtain a non-resident divorce application. We would be pleased to assist you in any Kitchener same-sex family law matter including matters relating to divorce applications, alternative dispute resolution, marriage contracts and separation agreements, common-law separation, child custody and access, child support, spousal support, property division, and issues related to parenting and adoptions.

We help same-sex couples plan to get married.

Canada became the first country outside Europe and the fourth country in the world to legalize same-sex marriage nationwide after the enactment of The Civil Marriages Act on July 20, 2005 to extend to same-sex couples the legal capacity to marry in civil ceremonies. This was the last step in a long fought process to enable same-sex couples the right to marry in Canada in a Supreme Court of Canada decision, commonly referred to as the Halpern decision.

Gay and lesbian couples now have full equality under the law including the right to marry. However, many gay and lesbian couples still face unique legal challenges when entering into a relationship, getting married, deciding to parent, and upon separation, that require knowledgeable and experienced legal representation.

And sometimes, we also help same-sex spouses to separate and divorce.

Same-sex couples in Canada also have the right to divorce. However, the law can become complicated for same-sex couples who married in Canada, but are not residents of a Canadian province.

The Divorce Act defines “spouse” under section 2(1) as “either of two persons who are married to each other”. Accordingly, all the rights and obligations that flow from both the Family Law Act and the Divorce Act are equally applicable to parties of a same-sex marriage and a heterosexual marriage.

The Divorce Act states that in order to obtain a Canadian divorce, at least one of the spouses has to have been a resident in Canada for at least one year, a requirement that is often referred to as “the residency requirement”. The residency requirements have created problems for same-sex couples who came to Canada to marry because their own place of residence did not allow for gays and lesbians to marry. These spouses can find themselves in marriage limbo if the marriage falls apart unless their jurisdiction recognizes same-sex marriage and divorce.

The Civil Marriage of Non-Residents Act has now established a divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where divorce cannot be granted because that state does not recognize the validity of their marriage. Same-sex couples residing in jurisdictions where same-sex marriage is not recognized and who were married in Canada now have the right to divorce in Canada. However, the parties must have been separated for at least twelve months.

We help same-sex families with parenting and assisted reproduction.

Same-sex parents in Ontario and those who have used assisted reproduction to conceive no longer have to adopt their own children. The All Families Are Equal Act ensures that couples such as those who use a sperm or egg donor or a surrogate are legally recognized as parents, updating parentage laws for the first time since 1978. Under the old rules, same-sex parents often had to go to court in order to obtain that recognition

And often, we help same-sex families with their estate planning.

Same-sex couples in a common-law relationship and those same-sex spouses who are spouses will face unique challenges and concerns when revising Wills and Powers of Attorney after separation. We offer comprehensive estate planning for our rainbow community clients based on our years of experience helping others in similar situations. We invite you to contact a lawyer from our Kitchener law firm for assistance in ensuring that your legacy is property protected based on your wishes and goals.