Canada was an early adopter of legalized gay marriage, passing it into law in 2005. All individuals, regardless of sexual expression or identity, have the right to marry the person of their choice in this country, with all the legal obligations and protections afforded to any married couple.
The country’s divorce laws do not discriminate against same-sex couples, although some unique issues arise when queer couples divorce. If you are going through a same-sex or queer relationship split, reach out to an experienced divorce lawyer. Our Ottawa LGBTQ+ divorce lawyers understand these unique issues and offer competent and sensitive representation to people in non-traditional unions seeking a divorce.
The Ontario Divorce Act s. 16.1 provides that each parent has an equal right to parenting time, which should be determined in the children’s best interests. When a gay couple has a child through adoption, surrogacy, or artificial insemination, the couple often makes provision for both partners to be the child’s legal parents.
However, sometimes a partner acting as a parent has no biological or legal relationship with the child. This might happen if, for example, your partner had a biological or adopted child in a previous relationship. If both the child’s legal parents are living, you cannot adopt the child unless the former spouse or partner relinquishes their legal rights. Nevertheless, you might wish to continue a relationship with the child, which could be in the child’s best interests.
In such cases, the Children’s Law Reform Act s. 21(2) allows you to seek a parenting order that permits you to have parenting time with the child. If you did not act as a parent to the child but had a relationship that is in the child’s best interests to maintain, s. 21(3) of the same law allows you to seek a contact order with the child. A seasoned LGBTQ+ divorce lawyer in Ottawa could advise you on pursuing the legal right to continued contact with the other spouse’s child.
Another complication that arises in LGBTQ+ divorce is the matter of residency requirements when the couple was married in Canada but lives in a foreign jurisdiction. Because Canada was an early adopter of legal gay marriage, many couples came to the country intending to marry here and then return to their country of origin.
However, if the couple later wishes to divorce, they could have trouble obtaining a legal marriage dissolution. Canada offers an option to divorce in this country if the country where a couple resides does not yet recognize legal marriage or divorce for same-sex couples.
The Civil Marriage of Non-Residents Act permits couples who were married in Canada to seek a divorce here if their country of residence does not recognize same-sex marriage and divorce. If you live outside the country, a knowledgeable Ottawa queer divorce law practitioner, such as Paul Riley, could discuss the specific requirements for seeking a non-resident divorce in more detail during an initial consultation.
In other respects, same-sex and queer divorce procedures are identical to opposite-sex divorce. You and your spouse must agree on property division, spousal support, child support, and parenting time before a court will order a divorce decree. If you have a prenuptial or marital agreement governing property division or spousal maintenance, courts will generally honor them absent evidence of coercion or fraud.
Couples benefit by using a mediator, arbitrator, or other professional to help them reach a consensus on issues relating to dissolving their marriage. Courts will accept a couple’s mediated agreements regarding financial issues. The court must review any agreements regarding children to determine whether they support the children’s best interests. A court could reject a parenting time or child support agreement if it fails the best interest test.
Whether you choose to engage in mediation, collaborative divorce, or fight a court battle, advice and support from an Ottawa lawyer is critical for same-sex and queer couples. By separating emotional issues from legal and practical ones, a legal advocate could speed up and smooth the process for everyone.
Divorce is often sad, stressful, and anxiety-producing. It could be even more so if you feel your legal representative is unfamiliar with issues and concerns that arise in gay divorce. Our Ottawa LGBTQ+ divorce lawyers will handle your matter competently and with sensitivity and are available anytime to address your needs. Schedule an appointment today to speak with a committed legal professional. We are available 24 hours a day to assist you.
The Riley Divorce & Family Law Firm
