Same-Sex Couples

Same-sex couple

This page deals with family law as it applies to people in same-sex relationships. The provincial and federal laws that affect gay and lesbian relationships in British Columbia are essentially identical to those that affect straight relationships. So this page provides a summary review of the issues from a same-sex perspective.

Here is a brief introduction to the impact of family law and divorce law on same-sex relationships. Included is discussion of the current state of the law on marriage and divorce. We also touch on some of the legal issues affecting transgender, transsexual and bisexual communities.

IntroductionIssuesAsset division

I. Introduction

For the last 40 years or so, discrimination between opposite- and same-sex couples due to government legislation has been steadily eroded. While gays and lesbians may face intolerance in day-to-day life, at least legislated discrimination has disappeared. From the Little Sisters censorship decision to Egan v. Canada on spousal benefits, Canadian courts have extended the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation.

The realm of family law has proven no exception. To quote Barbara Findlay, an advocate of queer rights, speaking to the Canadian Bar Association British Columbia several years ago:

Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop.

Barbara Findlay

She is correct. Equality applies according to the provincial statutes of British Columbia, along with the vast majority of federal statutes.

The Court of Appeal for British Columbia acknowledged that restricting marriage rights to straight couples was an egregious breach of the rights of gays and lesbians. The provincial Adoption Act is one of the few in Canada permitting adoption by same-sex couples. Same-sex couples are equally entitled to pursue matters of custody, even against former heterosexual partners, and to pursue claims for spousal support. Sexual orientation plays no part in family asset division, nor is it a factor in determining matters of access or child support.

How does family law intersect with gay and lesbian relationships? In every way. Every relief known to family law that is available to straight couples is also accessible by same-sex couples.

A. Same-Sex Marriage Watch

The federal Civil Marriage Act, also called the Marriage for Civil Purposes Act, is law in Canada across all provinces and territories. The Act defines marriage as “the union of two persons,” overriding the old common law definition that restricted marriage to straight couples by defining it as “the union of a man and a woman.” The bill also tries to protect religious freedoms by giving religious officials the right to refuse to perform same-sex marriages.

B. Same-Sex Divorce Watch

The Civil Marriage Act also amended the Divorce Act to change the definition of spouse. As a result, married same-sex couples may divorce without the need to challenge the constitutionality of the Act, as was necessary in the Ontario case of M.M. v. J.H. and the British Columbia case of J.S. v. C.F.

II. Issues for Transgender, Transsexual and Bisexual

To be frank, the jury is still out on how family law impacts on the trans community. The laws have slipped into a comfortable understanding of “the same or opposite genders” but only accommodates people on the spectrum in between with difficulty.

While bisexuality is as close to a non-issue in this context as there can be, transgender and transsexual people may encounter difficulty dealing with the courts on family matters. This section offers only a gloss of some of the issues affecting the community.

If you have a family law problem and your orientation or self-identity becomes an issue, you may want to contact a lawyer known to be sympathetic or activist on the issue.

Please note that this part must be read together with the related parts of this website and other sources for a proper understanding of the basics of the law applicable to the following issues.

A. Children

People who have discovered alternate self-identities during their marriages may find their new identities at issue if living arrangements for the children must decided in court. Shows like Will and Grace, The Birdcage and The L Word have made simple homosexuality commonly understood and empathized with. The problem is that nothing similar has popularized and explained the experience of the trans community.

Understand trans issues can be difficult for people, including ex-partners. This problem is especially acute in courtroom discussions concerning the care and control of children. A priority is to demystify a person’s self-identity and explain why his or her self-identity has no impact on their ability to parent, nor on the expected outcomes for the children.

In Forrester v. Saliba, a 2000 decision of the Ontario Court of Justice, the father of a child had begun transitioning to female. This was following the pronouncement of a consent order providing that the parents would have joint custody. The mother brought an application to vary the order to obtain sole custody. The application was based on the stress and depression affecting the parents since the transitioning process commenced.

The mother’s application was dismissed. Here are some interesting excerpts from the decision:

I indicated at the beginning of the trial to both parties and their counsel that the [father’s] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination.

The entire focus of this trial has been upon the consequences of the [father’s] transgendering, the mental health issues that have arisen as a result of the [father’s] transgendering process, and the [mother’s] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. … It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being.

B. Child Support

Trans issues have no impact on child support assessments. As a biological parent or if you qualify as a step-parent within the meaning of the legislation, child support is payable or receivable.

C. Spousal Support

The simple fact of financial dependence, which ordinarily has to be established for a claim of spousal support, should be sufficient to prove a support entitlement.

However, if the cause of dependence or an inability to be independent relates to or stems from the trans issue, be prepared to face a battle. That’s if if your former partner won’t agree to provide support. The problem lies in establishing the legitimacy of the financial dependency arising from the trans issue. In other words, the task is to convince the judge that the issue you are dealing with isn’t because of a choice or voluntary financial dependence.

D. Dividing Assets

Trans issues have no impact on asset division, except as might pertain to spousal support. Support is often considered in light of the effect that asset division has on the objectives of a spousal support order.

E. Divorce

This is one area that ought to be a no-brainer. The Divorce Act does not require spouses to be of opposite genders — whether at the end of their marriage or at the beginning — to qualify for a divorce order.

III. Division of Assets

Under the Family Relations Act, married couples are presumed to have an equal interest in all assets qualifying as “family assets,” regardless of whether an asset is owned by one party alone or by both jointly. Unmarried couples are only presumed to have an equal interest in assets that they own jointly. If only one party owns an asset, the non-owning party can only claim an interest under the law of trusts. The relief available under trust law is not as generous as that afforded to married couples by the Family Relations Act.

Because the law about asset division is as complicated for same-sex couples as for opposite-sex couples, this part only provides a brief introduction to the subject.

A. An Overview of the Division of Assets

For married spouses, the rules relating to the division of family assets are set out in Parts 5 and 6 of the provincial Family Relations Act. The central principle of the Family Relations Act is that if an asset qualifies as a “family asset,” both spouses are presumed to have an equal one-half interest in that asset.

The parts of the Family Relations Act which deal with property are not available to couples who are not married, including common-law couples. The only presumption that applies to unmarried couples is the equitable presumption that where more than one person owns an asset, all of the owners should be considered equal owners of that asset. In the case of assets that are not jointly owned, unmarried couples can only stake a claim to the other person’s property under the law of trusts.

B. Married Spouses: The Family Relations Act

This section offers a brief review of property issues and must be read together with family assets literature for a proper introduction to the law on this topic.

Part 5 of the Family Relations Act deals with the division of family assets between married spouses. Part 6 deals with the division of pensions between spouses. Pensions as well as RRSP accounts, RIF accounts, LIRA accounts and other forms of retirement savings are family assets by definition.

The basic principle of the Family Relations Act is that each spouse is entitled to an equal interest in all assets which qualify as “family assets,” regardless of when they were acquired and who owns them on paper. Not all assets are family assets, of course. Some assets, like inheritances, gifts and lottery winnings, may be personal assets that aren’t subject to division. Other assets, like a company car or a company computer, are “business assets” that may not be subject to division, although the value of the business assets will usually be reflected in the value of the shares of the businesses which own them.

“Family asset” is defined in s. 58 of the act:

Property owned by one or both spouses and ordinarily used for a family purpose by a spouse or a minor child of either spouse for a family purpose is a family asset.

The key to this definition is whether something was “ordinarily used for a family purpose.” If an asset meets that test, it’s an asset that must be shared. Things like the family home, the family car and the family bank accounts are obviously going to qualify as family assets. “Family assets” can include things that aren’t currently used for a family purpose but are intended to be used in that way in the future. Family assets might include things like a vacant lot meant to be used to build a recreational home or savings to be used on retirement.

To make things more complicated, a personal asset normally exempt from division can become a family asset if it ends up being “ordinarily used for a family purpose.” Consider an inheritance used as downpayment for a family home. Over time, the downpayment loses its flavour as a personal asset and becomes a family asset. On the other hand, if the inheritance were put in a bank account and left untouched, it would retain its character as a personal asset.

As has already been said, the Family Relations Act sets out a presumption that family assets ought to be shared equally. There are, however, ways of rebutting this presumption. Section 95 sets out a shopping list of reasons why an equal division might be inappropriate:

Unequal division by order

95   (1) The Supreme Court may order an unequal division of family property or family debt, or both, if it would be significantly unfair to

(a) equally divide family property or family debt, or both, or

(b) divide family property as required under Part 6 [Pension Division].

(2) For the purposes of subsection (1), the Supreme Court may consider one or more of the following:

(a) the duration of the relationship between the spouses;

(b) the terms of any agreement between the spouses, other than an agreement described in section 93 (1) [setting aside agreements respecting property division];

(c) a spouse’s contribution to the career or career potential of the other spouse;

(d) whether family debt was incurred in the normal course of the relationship between the spouses;

(e) if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;

(f) whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;

(g) the fact that a spouse, other than a spouse acting in good faith,

(i) substantially reduced the value of family property, or

(ii) disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

(h) a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;

(i) any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

(3) The Supreme Court may consider also the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the spouses if, on making a determination respecting spousal support, the objectives of spousal support under section 161 [objectives of spousal support] have not been met.

Section 95 of the Family Law Act

The easiest way to explain the essence of this section is to consider the example of a 82 year old millionaire who marries a 22 year old fresh out of modelling school. When their relationship tanks in a couple of years, the 24 year old says “I’d like half of your millions, please.” The 84 year old says “Hah! Our relationship was short, I brought everything into the marriage, and you contributed nothing to the acquisition, maintenance and preservation of my millions.” The 24 year old will get something but will be less than half. The relationship was short and the 24 year old brought little into the marriage and likely didn’t help much with the things the 78 year old had beforehand.

C. Unmarried Couples: Trust Law

This section offers a brief review of property issues and must be read together with literature on Unmarried Couples > Common-Law Relationships and Family Assets > Dividing Assets for a proper understanding of the applicable law on this topic.

Where a couple jointly own an asset, they are presumed to each have an interest in that asset. The asset will usually be divided equally, but it might be divided unequally if one of the parties contributed a lot more to the asset than then other. Contributing to an asset can mean more than just sharing in the purchase price. It can also mean labour given or money spent doing things like repairing or maintaining the asset, investing and managing an asset, or making loan or mortgage payments on the asset.

Where only one person owns an asset and the other party wants a share of it, things get a bit more complicated. Essentially, the non-owning party must prove that the other party holds or should be deemed to hold some or all of that asset in trust for the non-owning party. Where a trust relationship like this is proven, the owning party will usually have to make a payment to the non-owning party to discharge the non-owner’s interest in the asset.

An express trust is a trust created by some action taken by the parties to establish the trust relationship, such as writing a contract or agreement saying “I will be the owner of this car, since your credit rating won’t let you get a car loan, but the car is really yours.” A resulting trust arises where the conduct of the parties shows an intention to establish a trust relationship.

Where an express or a resulting trust can’t be proven, the non-owning party must prove that owning party was “unjustly enriched” and then ask the court to impose a constructive trust over that asset in order to get a share of the asset’s value as compensation for the unjust enrichment. This is the most common type of trust claim made by unmarried couples.

The idea is that the court should impose a trust — “construct” a trust — if the unjust enrichment claim is proven. To establish unjust enrichment, the non-owning party must show that:

  1. he or she was deprived of something (like money, labour or the money that would have been paid for that labour);
  2. the other party benefited from the same thing that the non-owning party was deprived of (the money, the free labour, etc.); and,
  3. there is no legal reason, like a contract, why the owning party should have the benefit.

Think of it like this. A couple had a traditional, domestic relationship: Partner A works in an office bringing home an income while Partner B stays home, maintains the household and cooks and cleans. Partner A gets the benefit of B’s domestic services, which saves A from having to hire a cook and housekeeper. At the same time, however, Partner B could have sold exactly those services to someone else and received a wage for working as a launderer, cook or housekeeper. Partner A benefited from exactly the thing that Partner B was deprived of, and A was therefore “unjustly enriched” at B’s loss.

While constructive trusts may establish an interest in an asset, they can be difficult to prove and disappointingly small. For example, the court might look at Partner A and Partner B and say to B: “Ah, but you didn’t pay any rent during your relationship, did you? You got free room and board in exchange for your chores, and we’ll chop the value of that from your interest in A’s property.”

You should not get the impression that all claims in constructive trust are doomed to fail. But you should be aware that they’re generally not nearly as fruitful as claims under the Family Relations Act. If you love your partner dearly, but love her property even more, get married!