While many family law principles apply equally regardless of sexual orientation or gender identity, LGBTQ couples can face unique issues amidst the breakdown of a relationship such as in the areas of parentage and property rights. Understanding these distinctions while navigating separation is key to protecting your rights and planning effectively for your future.
Property Division
In Ontario, LGBTQ couples may be married or in a common-law relationship, and this distinction matters. Married spouses have a legal right to equalization of net family property in accordance with the Family Law Act. Common-law partners, however, do not have the same automatic property rights, even after a long-term relationship.
For unmarried LGBTQ partners, this can create challenges, especially where assets such as a home are owned in only one partner’s name. In these cases, claims may need to be made based on equitable principles like unjust enrichment or constructive trust, rather than statutorily prescribed property division.
Cohabitation agreements can assist couples in avoiding uncertainty when it comes to how property will be divided if the relationship ends.
Spousal Support Entitlement
Spousal support applies to both married and common-law LGBTQ couples. A partner may be entitled to support if they meet certain criteria, such as having lived together in a conjugal relationship for at least three years or being in a relationship of some permanence with a child.
The analysis is the same between LGBTQ couples and heterosexual couples in the sense that support is determined based on factors like financial need, roles assumed during the relationship, and the length of the partnership.
Parenting Rights and Decision-Making Responsibility
Parenting disputes can be more complex in LGBTQ families, particularly when both parents are biologically related to the child. Legal parentage must be clearly established as, without proper documentation or agreement, a non-biological parent may face additional challenge asserting their rights.
Further, it is also important to consider that a person who stands in the place of a parent may be legally treated as one, regardless of whether they are biologically related to the child. In any event, the court always determines child-related issues in accordance with what is in the child’s best interests.
Final Thoughts
LGBTQ families can encounter unique challenges especially when it comes to parentage and property rights. Proactive legal planning is essential and may include ensuring the implementation of cohabitation agreements, marriage contracts, or parenting agreements. Obtaining legal advice from an experience family lawyer who understands the nuances of the law as it relates to LGBTQ families can help you better understand your corollary and parenting rights and obligations.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel's time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.