As one of Vancouver, Canada’s top rated same-sex divorce lawyers and family law firms, we are still receiving quite a few inquiries from foreign individuals about the status of the same-sex divorce law in Canada for non-residents. Contact us toll free from anywhere in North America at 1 877 602 9900. Or, you can also use our convenient online form.
Vancouver BC, Foreign Non Resident Same Sex Divorce – Update: August 2013
August 2013 UPDATE: Bill C-32 (An Act to amend the Civil Marriage Act) which permits same-sex couples who were married in Canada to obtain a divorce is now in full effect. His Excellency the Governor General in Council has fixed August 14, 2013 as the day on which section 4 of the Act comes into force throughout Canada. This now officially provides nonresident spouses (including same-sex couples) who married in Canada a mechanism to end their marriage. This process is available to couple only if they cannot dissolve their marriage where they live because their Canadian marriage is not recognized there. If you have questions or need help proceeding with your divorce please e-mail or call us toll-free at 1 877 602 9900. The official government of Canada announcement can be found here: CIVIL MARRIAGE OF NON-RESIDENTS ACT – ORDER FIXING EFFECTIVE DATE
June 2013 UPDATE: The House of Commons passed Bill C-32 containing amendments to the Civil Marriage Act which would permit non-resident couples (including same-sex couples) who were married in Canada, to get a divorce. The law now goes to the Senate for a vote and pending any amendments by the Senate, it should receive royal assent shortly and become law.
You’ll recall earlier this year (2012), this issue became quite prevalent in the news media as two non-resident women who were married in Canada, attempted to obtain a divorce in Ontario, despite not being residents in Canada ever in their lives. The uproar over the Canadian government’s seemingly discriminatory treatment towards gays and lesbians (which the law actually applied to same and opposite sex non-residents alike) spurred the government into action and amendments to the Civil Marriage Act were swiftly introduced in Parliament. Since then, the furor towards the government has generally subsided and thus so has the media’s interest – and the federal government’s urgency in addressing this issue.
Unfortunately, the legislation remained stalled in the Canadian parliament until today! Until the Senate passes the new bill, if you wanted to get a divorce in Canada, you must have been “ordinarily resident” in a Canadian province for at least one year before the commencement of proceedings (Divorce Act, section 3(1)).
What does “ordinarily resident” mean? According to the B.C. Family Practice Manual, “‘ordinarily resident’ is established by proving a spouse’s ‘intention to continue a regular and customary mode of life’ in the jurisdiction, including the establishment of a home, employment and social life”.
In addition, for a divorce to be granted by a Canadian court, the couple must meet one of the following requirements: (1) lived separate and apart for at least one year (2) one spouse has committed adultery against the other, or (3) one spouse has treated the other spouse with physical or mental cruelty.
The rule against non-resident divorces should change once the legislation is passed by the Senate, opening up the doors to non-resident same-sex divorces. (Now in full force and effect!)
If you would like to be included on a list of individuals who will be informed of the impending change in the law, please contact us toll free at 1 877 602 9900.
