On June 10, 2003, the Court of Appeal for Ontario issued a decision legalizing same-sex marriage in Ontario.  The Supreme Court of Canada declared same-sex marriage legal in provinces in Canada in July 2005 and the federal Civil Marriage Act came into force, making same-sex marriage legal across Canada. 

The Income Tax Act also replaced the term natural parent with legal parent to ensure that upon divorce, support payments would include the children of both opposite-sex and same-sex couples.  

The Family Law Act’s definition of marriage applies to same-sex and heterosexual couples.  This change required that definitions for husband and wife be amended to spouse

If you are common-law with your spouse, the same rules apply whether you are a same-sex or heterosexual couple.  In Ontario, if you have lived in a “marriage-like” relationship for a minimum of three years, you are considered a common-law couple.

Now that same-sex couples are legally entitled to marry, the question comes up about divorce in case the marriage does not work out.  You still require a separation and divorce in Canada in order to remarry.  Same-sex divorce in Ontario requires the same forms and papers as a heterosexual divorce. The forms which are needed in each case are dependent on the unique circumstances of the case. 

Many people think that the rights of a same-sex couple are different when it comes to divorce, and that is simply not the case.

Sexual orientation is irrelevant when it comes to child custody.  The court primary concern is ruling in the best interest of the child.  Spouses may apply for spousal support, and their property and assets will be divided in accordance with the Family Law Act or the Divorce Act.  Support, and access will also be dictated by these laws.

 Same-Sex Marriages and Divorce

Despite the above, the issue that can arise for same-sex couples is if the couples reside in a jurisdiction that does not recognize same-sex marriage. 

Mediation is always considered an optimal option to avoiding costly legal fees and the length of time it takes to get to trial.  Mediation is also the same process whether it be for heterosexual or same-sex couples.

Because most family law issues settle out of court, it makes sense to use your financial resources wisely and choose the less costly option.  Using a mediator to help you negotiate the terms of your settlement saves you up to 75% of your legal fees.  Using lawyers to negotiate with your ex’s lawyer will become extremely costly, very quickly.  Once people start to realize they can no longer continue to pay legal fees, they tend to turn to mediation.  It is prudent for any couple to start with mediation.

Most people also want their matter resolved quickly, without having to wait two or more years to reach a trial stage. Mediation can resolve your matter as quickly as a day.

Blog posts are for informational purposes only and do not constitute legal advice.

Written by Marian Grande, Mediator
October 16, 2020

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