Up until recently, those who were involved in a same-sex relationship had very little in the way of legal protections. However, during the last year, the provincial government passed legislation defining same-sex partners and extending certain rights and obligations to same-sex partners. In this article we will consider a few of the more significant amendments.
In Ontario a same-sex partner means either of two persons of the same sex who have cohabited, continuously for a period of not less than three years, or who are in a relationship of some permanence, if they are the natural or adoptive parents of a child. In order to avail oneself of the legal rights and obligations under the Ontario legislation, a person must fall within this definition.
The support provisions of the Family Law Act recognize that an intimate relationship can lead to one partner becoming economically dependent on the other. Therefore, a person who is or has been involved in a same-sex relationship, may be obligated to pay spousal support to the other partner. This obligation will arise in accordance with the other partner’s need, and the ability of the former to pay support. Having said this, there is an obligation on each partner to become self-sufficient following a breakup.
The Family Law Act sets out a comprehensive scheme for dividing the property and matrimonial home of a married couple. However, these rules do not currently extend to common law or same-sex partners.1
Given their lack of statutory rights, same-sex partners may try to establish a claim pursuant to the doctrines of unjust enrichment and constructive trust. A claim for unjust enrichment, arises when for example, a same sex-spouse performs domestic work for the benefit of the other. If he/she has a reasonable expectation of receiving something in return and this expectation is not met, the other party is unjustly enriched at the expense of the other. The only question then, is whether the appropriate remedy is one of a monetary award or a constructive trust. In the case of a constructive trust the successful party obtains a proprietary interest in the property belonging to the other spouse.
It should be obvious that blind reliance on the legislation and the common law can be hit and miss. Therefore, those involved in a serious and interdependent relationship should consider entering into a cohabitation agreement. Such an agreement can regulate the partners’ respective rights and obligations during cohabitation, at the time of a separation or on death.
These rights and obligations may include:
– ownership or division of property;
– support obligations;
– the right to direct the education and moral training of the children;
– any other matter in the settlement of their affairs (e.g., sharing of household expenses and chores).
The issues of custody and access to children fall outside the scope of a cohabitation agreement and can be overruled by the court.
In addition, we always advise our clients to exchange sworn financial statements and to seek independent legal advice prior to signing the agreement. By seeking independent legal advice and exchanging sworn financial statements, it is less likely that the contract will be set aside.
For people who die intestate, i.e., without a will, the government has established a set of rules to help manage and distribute the estate. Among other things, these rules set out the list of potential beneficiaries of the estate. This list does not include common law or same-sex partners, regardless of the length of the relationship. It is expected that this exclusion of common law and same-sex couples will be challenged as being unconstitutional.
Although the law does recognize the right of dependants to make a claim for support, this can be a time consuming and costly process.
To avoid these potential pitfalls, partners involved in a serious relationship should make a will. A properly drafted will automatically excludes the need to look to the government scheme.
People who have decided to forge a life together should take a step back to consider the potential legal ramifications. Seeking qualified legal advice is a wise investment in your future. For assistance please contact Nicola Savin or Jacqueline Peeters. For estate planning advice, contact Stanley Landau. 1
1These provisions of the Family Law Act have recently been challenged as being unconstitutional. It is expected that this issue will be heard by the Supreme Court of Canada next year. If the Court agrees, the ruling would also have implications for same-sex partners.
Please visit our Family Law specialty site at www.familylawtoronto.caShare this article