Cupcakes are topped with icons of same-sex couples. REUTERS/Stephen Lam
Same-sex couples in Canada have almost the same marriage rights as
heterosexual couples do. Almost, but there are still important
differences according to where you live.
Under the 2005 Civil Marriage Act, same-sex couples can marry and divorce anywhere in Canada.
Before that, the question of allowing same-sex marriage was up to
each province. Eight provinces and one territory had already approved it
before the amended Act legalized it nationwide.
The provinces, however, still set their own laws governing important
marriage and family issues including division of property, medical
decision-making, inheritance, and spousal or child support.
As with opposite-sex couples, deciding what rights a same-sex spouse
has, is largely determined by whether the couple was legally married or,
living in a common-law relationship.
Same-sex couples who legally marry are treated the same as married opposite-sex couples.
Rights to family property
When a marriage breaks down, a court doesn’t just divide property in
half. The easiest way to settle property issues is for the spouses to
reach an agreement. If you and your spouse do not have a marriage
contract and you cannot agree on how property will be divided, your
property will be handled according to the detailed rules and
calculations under your province’s family law legislation.
Although there are some specific items, which may belong to each
spouse, it’s actually the value of all the property you and your spouse
own jointly, minus the value of all property owned by each separately on
the date of marriage, which is divided.
Based on a 1999 Supreme Court of Canada decision, each province must
also recognize same-sex couples for the purpose of spousal support.
Legally married same-sex couples can also apply for spousal support
under provincial family law acts and the Divorce Act. However, spousal
support is not available for everyone, and will depend on several
different factors. It is often awarded where there is a significant
difference in the incomes of the spouses.
Specific factors that are considered when deciding if a spouse should get support may include:
- Financial means and needs of both spouses;
- Length of the marriage;
- Roles of each spouse during the marriage;
- Effect of those roles and the breakdown of the marriage on both spouses' current financial positions;
- Care of any children;
- A goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time;
- Any orders, agreements or arrangements already made about spousal support.
Custody and adoption of children
Another area where same-sex couples have similar rights or
obligations relates to children. While the biological parent will often
be given custody, the other person may be required to pay child support,
may be entitled to visiting rights, and may apply for custody or
adoption of the children.
Courts base their custody or adoption decisions on what’s in the best interests of the children.
Common-law same-sex couples
Rights to property
Under provincial and territorial law, unmarried same-sex couples are
treated the same as opposite-sex common-law couples. Similarly, since
common-law couples were not legally married, the rules under the Divorce
Act also do not apply.
Alberta, Ontario, New Brunswick, Newfoundland and Labrador, Prince
Edward Island and Yukon, do not grant property-sharing rights to
common-law partners. However, Saskatchewan, the Northwest Territories
and Nunavut, grant property-sharing rights unmarried spouses who have
lived together for two years.
In Manitoba and Nova Scotia, common-law couples that register their
relationship (or in Manitoba live together for three years, or have
lived together for one year or more and has a child) have
property-sharing rights. In British Columbia, unmarried couples that
have lived together for over two years in a marriage like relationship
are also entitled to claim the same interest in relationship property as
It’s advisable for common-law couples to take steps to protect themselves from the consequences of a break-up. For example,
- Put property in both of your names jointly, instead of just one
person's name. This way, if the relationship ends at some point in the
future, the property may be divided equally, and
- Enter into a written cohabitation agreement that sets out each person's right to property.