The Civil Marriages Act, 2005 (CMA), defines marriage as the lawful union of two persons to the exclusion of all others; it was with the passing of this legislation that same-sex marriage was legalized throughout Canada. Prior to the passing of the CMA, the laws relating to who could marry were contained solely within the common law of both Canada and the United Kingdom.
Currently, the same divorce laws apply to both same sex and heterosexual couples; same-sex Canadian couples married in Canada may obtain a divorce in Canada pursuant to the Divorce Act, provided that they are habitually resident in a Canadian province for 12 months.
That being said, issues with same sex divorce can arise in two particular instances:
- Issues can arise where a couple is validly married in a jurisdiction, such as Ontario, which does not specify gender requirements under the Marriage Act, and then either moves to or is habitually resident in a jurisdiction that does not recognize this marriage. Because the couple is technically married in one jurisdiction and not in another, they may encounter issues seeking a divorce in their jurisdiction (as it does not recognize their marriage). For example, if a same-sex couple travels to Ontario to marry, and then returns to their home jurisdiction where their marriage is not recognized, the couple will not be able to obtain a divorce in their home jurisdiction or Ontario, as they will not meet the residency requirements under Canada’s Divorce Act.
- Same-sex couples who are unable to divorce because of the aforementioned problem are at a significant disadvantage, as they cannot benefit from their jurisdiction’s system for dividing up property and establishing support. For example, a same sex couple who marries in Ontario but who lives in Texas will have no recourse to seek spousal support.
As a result of these issues, in 2013, the Canadian Parliament elected to create specific divorce laws for marriages under the CMA. Section 7 states that “the court of the province where the marriage was performed may, on application, grant the spouses a divorce” on the following conditions:
- There has been a breakdown in the marriage as established by the spouses having lived separate and apart for at least one year;
- Neither spouse resides in Canada at the time the Application is made; and
- Each of the spouses is residing – and for at least one year immediately before the application is made, has resided – in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.
It should be noted that, where a divorce is granted to non-resident spouses, the spouse cannot bring a claim for corollary relief (for example, support or equalization) under the Divorce Act. As a result, same sex spouses in states that do not recognize their marriages may still be at a disadvantage regarding their ability to access support and property division.
When complex jurisdictional issues arise in a same-sex divorce, you can count on the team at Feldstein Family Law Group P.C. to provide skilled insight, guidance, and counsel.
Arrange a confidential consultation with an Ontario divorce lawyer today by calling (905) 581-7222.