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This chapter will provide a brief introduction to how family law and divorce law impact on same-sex relationships, evaluate the equalities and inequalities presently affecting gay and lesbian couples, and discuss the present state of same-sex marriage and divorce. This chapter will also touch on some of the legal issues affecting the transgendered, transsexual and bisexual communities. Introduction For the last 20 years or so, there has been a steady erosion of the discrimination between straight and same-sex couples which exists as a consequence of laws made by governments. While gays and lesbians face homophobia and intolerance as a matter of course in day-to-day life, at least legislated discrimination has been on the wane. From the Little Sisters censorship decision to Egan v. Canada on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation. The realm of family law has proven no exception. To quote the wonderful barbara findlay, a tireless advocate of queer rights, from her address to a meeting of the Canadian Bar Association British Columbia's Vancouver family law subsection: "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." Ms. findlay's words are exactly correct: as far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the rights of gays and lesbians to equality, and our provincial Adoption Act is one of the few in Canada which permit 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 the division of family assets, 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. There in no relief of which straight couples can avail themselves that same-sex couples cannot. Same-Sex Marriage Watch The federal Civil Marriage Act, also called the Marriage for Civil Purposes Act, is now the law of Canada, binding in all of Canada's provinces and territories. The act defines marriage as "the union of two persons," overriding the old common law definition which restricted marriage to straight couples by defining it as "the union of a man and a woman." The bill protects religious freedoms by expressly allowing religious institutions to refuse to perform same-sex marriages if they don't wish to. The preamble to the act is instructive of the government's intentions in passing Bill C-38: WHEREAS the Parliament of Canada is committed to upholding the Constitution of Canada, and section 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination; WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes; WHEREAS the Supreme Court of Canada has recognized that many Canadian couples of the same sex have married in reliance on those court decisions; WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms; WHEREAS the Supreme Court of Canada has determined that the Parliament of Canada has legislative jurisdiction over marriage but does not have the jurisdiction to establish an institution other than marriage for couples of the same sex; WHEREAS everyone has the freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms; WHEREAS nothing in this Act affects the guarantee of freedom of conscience and religion and, in particular, the freedom of members of religious groups to hold and declare their religious beliefs and the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs; WHEREAS it is not against the public interest to hold and publicly express diverse views on marriage; WHEREAS, in light of those considerations, the Parliament of Canada’s commitment to uphold the right to equality without discrimination precludes the use of section 33 of the Canadian Charter of Rights and Freedoms to deny the right of couples of the same sex to equal access to marriage for civil purposes; WHEREAS marriage is a fundamental institution in Canadian society and the Parliament of Canada has a responsibility to support that institution because it strengthens commitment in relationships and represents the foundation of family life for many Canadians; AND WHEREAS, in order to reflect values of tolerance, respect and equality consistent with the Canadian Charter of Rights and Freedoms, access to marriage for civil purposes should be extended by legislation to couples of the same sex; To read the full text of the act, click here. Note that the act contains consequential amendments to, among other laws, the Divorce Act, the Income Tax Act, and the Marriage (Prohibited Degrees) Act. On 7 December 2006, a motion brought forward by the minority Conservative government to reopen the same-sex marriage debate was tossed out of Parliament by a vote of 175 to 123. It would seem that this issue, at least in Canada, has been laid to rest. Same-sex marriage is now legal in Canada, the Netherlands, Belgium, Spain, South Africa and Massachusetts. Same-Sex Divorce Watch The amendments to the Divorce Act made in the Civil Marriage Act have changed the Divorce Act's definition of spouse, and married same-sex couples may now 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. Back to the top of this chapter. Issues affecting the Transgendered, Transsexual and Bisexual To be brutally frank, the jury is still out on how family law impacts on the "trans" community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders," but accommodates no one on the spectrum in between. While bisexuality is as close to a non-issue in this context as there can be, the transgendered and transsexual may well encounter difficulty dealing with the courts on family matters. This segment offers only a gloss on some of the issues affecting this community. If you have a family law problem and your orientation or self-identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to. An American organization called TransParentcy has put together an interesting website dealing with trans issues and family law. Visit them at www.geocities.com/transparentcy/. Please note that this segment must be read together with the related chapters of this website for a proper understanding of the basics of the law applicable to the following issues. Children Those who have discovered an alternate self-identity during their marriage will find their new identity hotly at issue in the event that the living arrangements for the children must decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made straightforward homosexuality into something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. It can be very difficult to understand trans issues, much less place them into the basic, non-intimidating terminology best suited for courtroom discussions about the care and control of children. The diffulty you can expect to face will lie in the demystification of your self-identity and explaining matters to the court in a simple, straightforward manner, and explaining why your self-identity has no impact at all on your ability to parent nor on the expected outcomes for your children. On the bright side, the single reported case the author was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. In Forrester v. Saliba, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transgendering to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transgendering process. The following are some interesting extracts from the case: "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." The mother's application was dismissed. Child Support Trans issues have no impact at all on the determination of child support. If you are a biological parent or qualify as a step-parent, child support will be payable or receivable. End of story. Spousal Support The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face a tough fight if your former partner won't agree to provide support. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter that the issue you are dealing with isn't one of choice or a voluntary financial dependence. Dividing Assets Trans issues have no impact at all on the division of assets, except as might pertain to spousal support since support is often considered in light of the effect that the division of assets has on the objectives of a spousal support order. Divorce Thankfully, this is one area which ought to be a no-brainer. The Divorce Act no longer requires spouses to be of opposite genders (whether at the end of their marriage or at the beginning of it) in order to qualify for a divorce order. Back to the top of this chapter. Site Navigation
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