Same Sex Spousal and Family Rights in Canada

Barbara Findlay QC for The Lawyers Weekly

Lesbians and homosexual men in Canada have almost the same rights and responsibilities as heterosexual Canadians in family law.

But the devil is in the details: "Almost" equal can mean big problems for same sex families in Canada and "almost" equal can mean a test case short of a real remedy. Rights of lesbian and gay families in Canada have been established mostly by same sex couples going to court and arguing that they are entitled to the benefit and the responsibilities of family law in the same way that heterosexual couples are, and that if the Canadian law does not apply to them the law is in breach of the Charter of Rights. With the exception of one or two early cases, this strategy has been successful wherever it has been tried. But it means that for lesbians and gay men, rights in Canada under family law depend on where they live.

By virtue of Bill C-38, the federal Civil Marriage Act, passed amid high drama in the House of Commons in, same sex couples can marry and divorce, everywhere in Canada. In a widely-reported case, a B.C. Court held that the ground of adultery is available even if the adulterer had an affair with someone of the same sex - until that time, not possible under the common law definitions of 'adultery'.

Though it is now possible to get a divorce across the country, complete equality remains elusive because it is the provinces which have the right to pass laws about spousal and child support and the division of family property when a marriage ends. If two men marry and divorce in Ontario, their rights under the Family Law Act are the same as they would be if they were a man and a woman. In Nova Scotia, on the other hand, 'spouse' is defined in matrimonial property legislation as either a man or a woman married to each other, so the men would have to take a Charter challenge to advance their property rights.

In some provinces - for example B.C. and Ontario - lesbian and gay couples who live together have the same rights and responsibilities as heterosexual common law partners. That includes a right to seek spousal maintenance or child maintenance when the relationship ends. But in other provinces in Canada, no test case has been brought and no legislation has been passed so the rights of common law same sex couples are not yet clarified.

Adoption in Canada is also governed by provincial laws. In most provinces and territories, same sex partners can together adopt a child, just as opposite sex couples can. And like straight step-parents, a lesbian or gay couple in which one party is a biological parent can choose to have a "stepparent adoption" so that both spouses are parents in law. But in some provinces in Canada these rights are waiting for the next equality lawsuit.

Though 'family law' is generally considered to be the law governing families, 25% of all legislation implicates family relationships. The cluster of laws that govern the same sex family in relation to the state - everything from spousal pension rights to who can be named as a parent on a birth certificate - also depend on where you live. In British Columbia for example the lesbian co-mother of a child conceived by her partner using anonymous sperm can be listed as the child's second parent on the birth certificate; and in Ontario a gay father was successful in arguing that his name should be the only name on the birth certificate of his child, who had been conceived by in vitro fertilization.

For same sex couples in Canada, the moral of the story is to beware of general family law information, which may or may not apply to you; and write an agreement between you and your partner - married or not - about how you want to address economic and other issues during your relationship, and afterwards if it ends. For family lawyers serving same sex partners the lesson is to make no assumptions about the state of the law, which continues to change at an uneven pace across the country.

Until the "almost" is gone from "almost equal", it is Canadian same sex families who bear the burden of the law's unequal treatment.

Barbara Findlay, QC is a lawyer in Vancouver B.C.

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