Calgary Same Sex Divorce lawyers help you to navigate successfully divorce in Calgary and Alberta. Peter Graburn shows you the ropes of Calgary same-sex divorce in today’s blog.
Same-sex couples in Alberta live in the same two legally-recognized family relationships as opposite-sex couples: either common-law (in Alberta legally referred to as Adult Interdependent Partnerships or AIPs) or married. But how are same-sex couples treated under the law when their relationship comes to an end? How are the issues they must resolve upon the breakdown of their relationship (ie. children, financial support, division of property, etc.) dealt with? Contact our Calgary office today to get focused advice directed to your particular situation.
Calgary Same Sex Divorce 403 444 5503
Simply stated – same-sex couples in Alberta have the same rights and obligations upon relationship breakdown as opposite-sex couples. But (as most likely know) this was not always the case.
Calgary Same Sex Divorce lawyer Peter Graburn explains that prior to 2005 (2003 for AIPs), same-sex couples in Alberta did not have the same rights as opposite-sex couples. In fact, in March 2000, the Alberta government passed amendments to the provincial Marriage Act to specifically set out an opposite-sex-only definition of the term “marriage” (even going so far as invoking the rarely used Section 1 “notwithstanding clause” of the Canadian Charter of Rights and Freedoms to defend the definition from constitutional challenge on the ground it violated the Charter’s Section 15 protection of sexual equality).
In July 2005, the federal government passed the Civil Marriage Act which adopted a gender-neutral definition of the term “marriage” (being a union of “two persons”), thus making same-sex marriage legal in Canada (and Alberta). Calgary Same Sex Divorce faced an initial hurdle when the Alberta government of the day considered not recognizing this change by not solemnizing “marriages” at all (instead authorizing “civil union” licences only), it ultimately changed its position and agreed to issue “marriage” licences to same-sex and opposite-sex couples equally. In May 2014, the provincial Marriage Act was amended to replace the terms “husband and wife” with the term “spouses”.
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But what are the issues same-sex couples have to deal with and resolve upon the breakdown of their relationship? Couples facing Calgary Same Sex Divorce have basically the same as opposite-sex couples, specifically:
● Divorce – If the same-sex couple is married and wish to end their marriage, the couple would look to Section 8(1) of the federal Divorce Act, which states:
8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
The Divorce Act defines “spouse” as either of two persons who are married to each other, thus having a gender-neutral basis (by not referring to gender at all).
● Children – Hopefully the top priority of any separating couple (whether same-sex or opposite-sex couples) is the custody and parenting arrangement for their children. In this regard, Section 16(1) of the Divorce Act states:
16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.
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So how can same-sex couples have “children of the marriage”? Simple – the child may be the biological child of one same-sex partner from a previous relationship, or one (or both) of the same-sex partners may have adopted the child.
●Financial Support – If one of the same-sex partners needs financial support because of the breakdown of the marriage relationship, they can look to Section 15(2) of the Divorce Act, which states:
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
●Division of Matrimonial Property – Finally, if the same-sex married couple has property (ie. a matrimonial home, investments, pensions, etc.), the partners can look to Section 3(1) of the Matrimonial Property Act (currently being renamed the Family Property Act and being extended to common-law couples), which states:
3 (1) A spouse may apply to the Court for a matrimonial property order…
The Matrimonial Property Act simply states a “spouse” includes a former spouse and a party to a marriage notwithstanding that the marriage is void or voidable (thus not really giving a definition of “spouse” at all).
As indicated above by our Calgary same sex divorce lawyers, simply stated – same-sex couples in Alberta are entitled to the same rights, responsibilities, and benefits upon relationship breakdown as opposite-sex couples. But is it really that simple for same-sex couples? – not likely. While a 2011 poll conducted at the University of Lethbridge found that over 72 percent of Albertans supported same-sex marriage, this has not always been the case (as can be seen by the Alberta Governments position on the definition of “marriage” in 2000, noted above) – intolerance, belittlement and outright discrimination was the norm.
Current legislation (both federal and provincial) affecting same-sex relationships reflects the respect and equality all family relationships deserve. Calgary Same-Sex Divorce Lawyers assist their clients to understand that while their relationship may be different than other family relationships, the legislation and Courts treat all family relationships, whether same-sex or opposite-sex, equally. For a detailed summary of key issues involving same-sex couples in Canada read this detailed summary.
Call our Calgary Same Sex Divorce lawyers today at 403 444 5503 to move forward with your life.