Foreign same-sex couples may now be able to get divorced in Canada. Although Canada does not have residency requirements for marriage, the federal Divorce Act mandates that in order to apply for a divorce, an applicant must reside in one of the provinces for a minimum of one year. This requirement has created an untenable situation for many gay and lesbian couples married in Canada, who reside in foreign jurisdictions that do not recognize either same-sex marriage or same-sex divorce.

To correct this legislative oversight, and in the interest of fairness, The Parliament of Canada passed in 2013 Bill C-32 – An Act to Amend the Civil Marriage Act. Under this new regime, marriages of foreign gay couples, solemnized in Canada, will be valid domestically, “even if one or both of the non-residents do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile.” The Act also ensures that all same-sex marriages, either entered into by foreigners or residents of Canada, are recognized in Canada and that divorces can be obtained by non-residents, where that option is unavailable in their home jurisdiction.

The provisions of Part 1 of this Act, validating the marriages of non-residents, took effect on June 27, 2013, when this piece of legislation received Royal Assent. Nevertheless, the provisions of Part 2, setting out a new process for non-residents to divorce in Canada, will take effect on a date to be determined by Order in Council – which will hopefully happen in near future.

As soon as the government establishes the process and any additional forms (if needed), non-resident same-sex couples will be able to apply for divorce in Canada and Ontario, assuming that they meet other legislative requirements (e.g. they have been separated from a spouse for at least one year).

Although gay and lesbian couples who wish to divorce in Canada now have a viable process in place, they should consult an experienced gay divorce lawyer to advise them as to the changing state of the law and the proper procedure to follow.

Gay and lesbian couples who have marriage (prenuptial, postnuptial) contracts or cohabitation agreements are often in a better position should they decide when and how to terminate their relationship than those that don’t, since they have already discussed and agreed upon most of the issues that would arise upon termination. If there is a child involved, adoptions and second parent adoptions can protect the legal rights of the non biological parent, allowing the adoptive parent legal standing to seek custody and visitation, which may be challenging otherwise. Additionally, your former spouse may sue you for a division and equalization of marital assets, including any equity acquired in your home during your relationship, any earnings on investments during that time, and interest earned on your bank accounts. Adoption and Surrogacy for Same-Sex Couples

Our legal services in the areas of adoption and surrogacy for gay couples in Toronto and elsewhere in Ontario are caring and confidential. In Ontario, both married and unmarried same-sex couples are free to adopt jointly, or for one of them to adopt the child of his or her partner. A second-parent or stepparent adoption is common in situations where one partner already has a child from a previous relationship, or where a child was born to one partner through surrogacy or artificial insemination.

Our adoption and surrogacy lawyer, Ivan Steele, can guide you through the legal and practical complexities of an adoption process, including the drafting and submission of the required paperwork.