The rules in Canada with respect to same-sex divorce are indistinguishable from heterosexual divorce when it comes to Canadian residents. Canadian resident same-sex couples can use the same combination of federal and provincial laws as opposite-sex couples to get divorced. This has been the case since the Civil Marriage Act in 2005 included same-sex couples in the definition of marriage. However, some foreign residents may be able to use the Civil Marriage Act to get divorced.

Canadian resident couples wanting to divorce and get corollary relief such as parenting or child or spousal support orders, use the Divorce Act. For residents in Ontario, the Family Law Act is used to settle property and equalization payments as part of the divorce process.

However, these laws are not available to everyone seeking a divorce in Canada. For example, same-sex couples married in Canada, but residents of a place that does not recognize their marriage could not use these laws. For these people, the Canadian government amended the Civil Marriage Act in 2013 to allow them to divorce in Canada.

Divorce and Corollary Relief Under the Divorce Act

The Divorce Act is a federal law that enables divorce and corollary relief for Canadian residents. It is available to legally married same-sex and heterosexual couples if they meet all the criteria.

Divorce Under the Divorce Act

The spouse who files for divorce must be a resident in a Canadian province for one year before filing. Spouses need to show there has been a breakdown of the marriage before being granted a divorce. A breakdown is evidenced by the spouses living separate and apart for at least one year immediately before the divorce proceedings, though this does not necessarily mean the spouses live in separate residences. Alternatively, and less commonly, a divorce may be granted sooner if there is evidence of adultery or cruelty, which may be either physical or mental.

Corollary Relief under the Divorce Act

The Divorce Act also allows for corollary relief including parenting orders, child support, and spousal support. Parenting orders incorporate parenting time and decision-making responsibilities. The best interest of the child is the most important consideration when determining a parenting order. Many factors are used to determine the best interests, including the child’s needs and the child’s relationship with each spouse.

The federal child support guidelines largely decide child support amounts. However, the guidelines may be deviated from if there are circumstances that warrant it and following them would be inequitable. Spousal support looks at the means and needs of each spouse. Factors considered are the length of cohabitation, what each spouse did while living together, and any agreement made about support, like a marriage agreement.

Divorce Under the Family Law Act

The Family Law Act applies to the divorce process by providing important relief like possession rights to the matrimonial home and equalization payments. Separation agreements, commonly used in a divorce, are also given force.

Matrimonial Home Under the Family Law Act

Under the Family Law Act, there are specific provisions for the matrimonial home. The law states all married “spouses have an equal right to possession of a matrimonial home.” However, one spouse may get exclusive possession as part of an agreement. Some of the considerations when deciding exclusive possession include the best interests of the child, the financial position of both spouses, and any written agreement between the spouses.

Equalization under the Family Law Act

The Family Law Act also provides couples with an equalization equation. Equalization payments acknowledge that “in the marital relationship there is equal contribution.” Whoever has a higher net family property pays owes the equalization payment. The first step to determine the equalization payment is to calculate each spouse’s net family property. The spouse with the lower net family property is owed half of the difference between each spouse’s net family property value. A lawyer can make the complicated equalization calculations easier.

Separation Agreements under the Family Law Act

Another important part of a divorce is the separation agreement. This is a contract between the spouses that can state each spouse’s rights and obligations in the following areas:

• Ownership or division of property;
• Support obligations;
• Education and moral training of children;
• Decision-making responsibility or parenting time of children; and
• Any other matters to settle their affairs.

Any provisions in the agreement regarding children need to be in the best interest of the child. A separation agreement needs to be made with full financial disclosure by both spouses and each spouse needs to understand the nature of the contract. Consulting with a lawyer before signing is important to ensure both spouses understand the agreement.

Same-Sex Divorce for Non-Residents Under the Civil Marriage Act

The Civil Marriage Act was passed in 2005, changing the definition of spouses in Canada from “one man and one woman” to “two people”. Not only were same-sex couples in Canada allowed to marry throughout Canada, but so were couples from places outside of Canada where same-sex marriage was not yet legal. Since the Act was passed, same-sex couples from around the world have come to Canada to get married. However, if those couples wished to divorce, there were limited options. They could not get divorced where they lived because their marriage was not recognized. As non-residents, Canada would also not grant a divorce. 

In 2013, the Civil Marriage Act was amended to allow the province where a non-resident couple was married to grant them a divorce. For non-residents to get divorced in Canada they must meet the following conditions:

• A breakdown of the marriage shown by living separate and apart for a minimum of one year before applying to get divorced;
• Neither spouse can be a resident of Canada when applying; and
• Both spouses need to have lived in a state that cannot grant their divorce because that state does not recognize their marriage for the one year before applying and at the time of application.

However, corollary relief is unavailable under the Civil Marriage Act. Therefore, the protections for child or spousal support under the Divorce Act are unavailable to non-resident same-sex spouses applying for a divorce.

Contact Bortolussi Family Law for Advice on Same-Sex Divorce

If you have any questions about same-sex divorce in Canada, please contact the knowledgeable family lawyers at Bortolussi Family Law online or by phone at 416-987-3300. We are ready to advise you on your rights and provide advice.