My partner and I married last year at city hall, but it's not working out and we'd like to get a divorce. What can we do?

The Divorce Act defines "spouse" — the only people to whom the act applies — as "either of a man or a woman who are married to each other. As a result, technically you can't get divorced.

A recent court decision from Ontario has found that this section of the Divorce Act was unconstitutional, and allowed a lesbian couple to divorce. This decision ought to have effect throughout Canada, but the courts may handle it as they have the same-sex marriage issue, on a province by province basis. Either way, the constitutionality of this section of the act ought to be a no-brainer. You should start an action for Divorce, but be prepared to address this issue with the court.

If the notwithstanding clause is used, what happens to the gay and lesbian couples who are married - will their marriages be void? Also, will the provinces that allow same sex marriage still issue marriage liciences? (by R of Halifax, NS)

I have a child from a former relationship with a man and I have custody. Now I'm in a committed relationship with my girlfriend and my son's father wants to take him away from me because of my new relationship. Will the court change the Order because I'm lesbian?

In all likelihood, no. All the court cares about is what is in the best interests of your son. As long as you are just as good a parent as you were when you were first granted custody, nothing should change. Just because your ex has a problem with your sexuality doesn't mean the court will. Some cases have made an issue out of a parent's sexuality where the parent had multiple partners, exposed the child to pornography and things of that nature, however the social climate has changed a great deal, and unless your ex can point to some actual, real harm your son is suffering because of your sexual orientation, he's not likely to have a lot of luck with his application.

I am a single gay male who has been asked to father a child with a lesbian couple whom I am good friends with. My role would not only be as the sperm donor, but also as the father in what I call a co-parenting relationship. My question is how can the three of use have equal legal rights to the child? (by R of Edmonton, AB)

During my relationship, my partner was the one who worked and I stayed home looking after his child. Now that our relationship has ended, I can't get my old job back and I'm finding it impossible to make ends meet and give him daycare service for his son. Can I apply for support even though I'm a man?

While it's possible that the court might apply a stereotype about men being the breadwinners in a relationship, it shouldn't. The question really is whether you are in need of support, whether your need for spousal support arose from your relationship, and whether your ex has the ability to pay you. It sounds to me that the sort of traditional "housewife" role you played in your relationship was something you and your ex agreed to and that you became dependent on his income as a result. I can't see, without more information, why the court wouldn't allow you support.

My ex-partner and I separated last July after 19 years of co-habitation. He has always worked and now makes close to $50,000. I am making about twice as much. Is it likely that I would have to pay spousal support? (by M of Ottawa, ON)

I was a man when my wife and I married, but since our separation, I've undergone gender reassignment and am now a woman. I've had my name legally changed and all of my ID is in my new name. Can I still get divorced?

Yes. While the Divorce Act presently applies to opposite-sex spouses, the important thing is that you were a man when you married, and that's what your Marriage Certificate will state. When you begin divorce proceedings, simply use both your old name and your new name in the pleadings. I'm well aware that you probably won't like that, but I'm afraid that until the act is changed, that's what you'll have to do.

The pleadings will simply identify you as, for example, "Jessica Jane Doe formerly known as John James Doe." Make sure that you spell your old name exactly as it appears on your Marriage Certificate, by the way."

After a same-sex relationship has ended, is there a certain time frame a person has to legally contest the division of property? (by J of Prince George, BC)

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