Area of Law: Family Law
Answer # 0159
Same-sex relationshipsRegion: Ontario Answer # 0159
Under Ontario law, same-sex couples are treated the same as 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.
Legally married spouses
Same-sex couples can now legally marry and, under the law, are treated the same as married opposite-sex couples.
Rights to family property
Upon the breakdown of a legal marriage, contrary to what many people may think, the court does not 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 the Family Law Act. Although there are some specific items, which may belong to each spouse, it is 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.
Legally married same-sex couples can also apply for spousal support under the Family Law Act 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 include:
- the financial means and needs of both spouses;
- the length of the marriage;
- the roles of each spouse during their marriage;
- the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions;
- the care of the children;
- the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and
- any orders, agreements or arrangements already made about spousal support.
Common-law same-sex couples
Rights to property
Under the law, unmarried same-sex couples are treated the same as opposite-sex common-law couples. Matrimonial property rights in the Family Law Act are not extended to unmarried couples. Similarly, since common-law couples were not legally married, the rules under the Divorce Act also do not apply.
Although, in some circumstances, a claim could be made quite apart from the limitations of the Family Law Act, for possession or ownership of certain shared property through unjust enrichment or constructive trust claims, it is advisable for common-law couples to take steps to protect themselves from the consequences of a break-up. For example,
- you can 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
- you can enter into a written cohabitation agreement that sets out each person’s right to property.
In Ontario, common-law spouses also have the same rights to spousal support as married couples, as long as they qualify as a spouse under the Family Law Act. The Act requires that the couple was living together for at least three years, or that they have a child together and have been living together in a relationship of some permanence. If the person qualifies as spouse, the court will look at whether one spouse needs to be financially supported and whether the other spouse has the ability to pay. If both spouses are employed and earning a similar amount of money, the court will generally not order one spouse to support another.
Custody and adoption of children
The recent amendments made to the Family Law Act and the Divorce Act allow a same-sex spouse, who has settled an intention to treat a child as a child of his or her family, to seek custody of that child. This right is the same for legally married and common-law same-sex couples. While the biological parent will often be given custody, the other person may be required to pay child support, may be entitled to visitation rights, and may apply for custody or adoption of the child. Whether a custody or adoption application is successful will depend on what the court decides is in the “best interests” of the child.
Under the Child, Youth and Family Services Act, adoption by a same-sex spouse is permitted, regardless of whether the couple was legally married or living in a common-law relationship. Since child custody and adoption laws for same-sex couples are the same as those for opposite-sex couples, for more detailed information, refer to our Custody of Children topics.
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