Questions and answers about family law and divorce in Ontario - Shulman Law Firm

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I’m in a Same-Sex Relationship. Does Divorce Law Differ for Me?

People facing separation or divorce have many questions. Same-sex spouses who are breaking up might have even more. For example, will the law treat the end of their relationship differently?

Thankfully, Ontario’s Family Law Act and the federal Divorce Act both demand equality. They mandate that gay or lesbian couples have the same legal rights as heterosexual couples. For same-sex couples looking into separation or divorce, this means that they will see the same rules and procedures as if they were a straight couple. This spans spousal support, child support, and, if married, divorce and property division. 

The Divorce Act applies only to married couples. Gay couples were excluded from legal matrimony in Ontario until 2003 when equal marriage finally became a legal reality here. A few provinces (we’re looking at you, Alberta!) resisted marriage equality. But since a Supreme Court of Canada decision in 2005, marriage has been open to all couples in Canada.

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Common Law Relationships

The Divorce Act and the Family Law Act mandate property division when a marriage ends. However, this does not apply when a “common law relationship” finishes. 

For many reasons, many same-sex couples remain unmarried. That being said, any two single adults living together in a conjugal relationship for at least three years are treated as spouses. This is for purposes of support obligations under Part III of the Family Law Act. Unmarried same-sex couples have had access to those spousal support and child support provisions since 1999. This came about from a Supreme Court of Canada decision. This decision took the equality rights laid out by the Canadian Charter of Rights & Freedoms to mean that same-sex couples deserve to be recognized in the same way as heterosexual couples.  

LGBTQ+ & Non-Resident Spouses

Marriage and divorce for the LGBTQ+ community are relatively streamlined in Canada. However, there are some challenges for non-resident spouses applying for a divorce. Sadly, some countries still have not embraced same-sex marriage, and refuse to legally recognize such marriages. Ironically, this means that in such countries, it may not be legally possible to bring local divorce proceedings to end a same-sex marriage that took place in Canada. Instead, the couple must return to Canada. The Divorce Act allows you to file a divorce application to a court within the same province of the marriage. 

We proudly celebrate Pride this month and all year. We’ll continue honouring the rights of the LGBTQ+ community while providing insights and help to those who need it. 

If you have any questions, you can feel free to contact us at (416) 661-2777. We will be more than happy to help you.  

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