FAQs about same sex issues

What is the status of gay and lesbian marriages?
The Supreme Court of Canada has now decided that it is legal in all of Canada to get married.

Are unmarried gay and lesbian couples considered as common-law relationships?
Yes; the definition of common-law couples does not distinguish between gay and straight couples. If you have lived in a “marriage-like” relationship for at least three years, you are a common-law couple, regardless of the sex of your partner.

If I end a common-law same-sex relationship, do I need to seek a divorce?
No. Common-law relationships are not marriages and do not require to be ended by divorce. The only reason to seek legal assistance when a common-law relationship ends is to obtain assistance with issues like spousal support, child support, child custody and access, or division of property

Will custody decisions go against me if I’m in a same-sex relationship?
Child custody decisions are generally unconcerned with sexual orientation. The court’s primary interest in making orders related to child custody and access is the best interest of the child.

Can one partner in a same-sex common-law couple make a claim for spousal support after a break-up?
Like straight common-law couples, members of same-sex common-law couples that split up can petition for spousal support, as long as the couple qualifies as a common-law couple, by having lived together in a “marriage-like” relationship for at least three years before separating).

Is the division of property for a common-law same-sex relationship the same as the division of property for married couples?
No. When a married couple divorces, the basic rule is that the increase in value of the property during the marriage is divided equally. This basic rule is NOT applied to common-law couples, whether straight or gay, because common-law relationships are excluded from the provisions of the Family Law Act. Partners in same-sex common-law relationships who believe they deserve a portion of the property held in the name of the other partner must prove that they deserve a share of that property. To meet the burden of proof, the partner who seeks a share of the property held in the name of the other partner must show that he or she made a contribution, either monetary or a contribution of time and effort; that that contribution exceeded the benefit that he or she has already received; that the other spouse received a disproportionate benefit; and that there’s no fair reason that the contributions of the non-owning spouse shouldn’t be rewarded.

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