Whether your partner is of the same sex or the opposite sex, your legal rights regarding separation are identical. What makes a legal difference is whether or not you and your partner are married. Below are brief outlines of the various corollary issues you might be facing as a same-sex couple upon separation.
The entitlement to spousal support is identical for same-sex and opposite-sex couples. Whether or not you and your partner are married, you may be entitled to spousal support, depending on the nature of your relationship, your and your partner’s roles within it, and your financial circumstances. See the section of this website on Spousal Support, where you will find all the relevant information on support entitlement, how amount and duration of support are determined, and how you can apply for support.
Divorce and Division of Property
Same-sex couples who are married can apply for divorce under the Divorce Act in the same way that opposite-sex married couples can, and are entitled to the same equalization of family property under the Family Law Act. Neither of these pieces of legislation distinguishes between same-sex and opposite-sex couples; they apply equally to all couples.
The only way divorce legislation may affect you differently as a same-sex married couple is if you do not reside in Canada, but came here to get married because your home jurisdiction does not allow same-sex marriage. Currently, such couples cannot divorce in Canada unless they have been “ordinarily resident” here for one year, as per the requirements of the Divorce Act. However, Bill C-32, which is currently awaiting royal assent, will resolve this legal difficulty and allow couples married in Canada to divorce in Canada.
Child Custody, Access & Support
The rights of parents in relation to their children regarding custody and access, for example, do not depend on the sexual orientation of the parent. The only differences that may affect you as a same-sex parent occur if you are not the biological or adoptive parent of a child you and your partner have been raising together. The legislation relevant to child custody, access, and support differentiates between natural/adoptive parents, and those who have been standing in the place of a parent, or acting as a parent, without any formal legal tie.
If you and your same-sex partner are the adoptive parents of a child together, you are both considered the parents of that child, and will have the same rights regarding child custody and access and child support as would any other parents.
A same-sex partner who has acted as a parent can also be required to pay child support, even if a biological parent is also paying support. However, those who are standing in the place of a parent are treated differently under the Child Support Guidelines, and the amount the court orders such a person to pay may not be in accordance with the Table amounts of support, applied to all biological and adoptive parents of a child.
Get additional information that applies to your individual situation by calling Feldstein Family Law Group P.C. at (905) 581-7222. Our family lawyers serve all of Ontario.