Queer divorce 101

Now that theglow of Bill C-38 has worn off, the reality is that some married same-sex couples have already divorced. Equal rights all around, eh? Though lawyers say you should consult with a lawyer to find out all your rights and obligations when a marriage ends, here are the basics.

Status of the laws
The dubious honour of the first Canadian same-sex divorce — perhaps the first same-sex divorce in the world — goes to two women, referred to as MM and JH, who were one of the first couples to city hall when same-sex marriage was made legal in Ontario in June, 2003. Five days later, they realized it was a mistake and were told that while marriage was legal, divorce was not.

After months of legal wrangling, Justice Ruth Mesbur of Ontario’s Superior Court Of Justice struck down sections of Canada’s Divorce Act in September, 2004, allowing MM and JH to part ways.

The passage of Bill C-38 in July made the issue moot. The law legalizing same-sex marriage included a change in language to the Divorce Act. Spouse is now defined as “either of two persons who are married to each other.” Like marriage, the legal process of divorce is now the same for homo and heterosexual couples.

Though it may have been absent in the relationship, Hamilton lawyer Frank Raso says that good communication between spouses is a key when contemplating divorce.

“I think first and foremost they need to try to keep the lines of communication open between themselves,” says Raso.

Getting ready
First, pick a province. At least one spouse must have been resident in the province of the divorce application for at least one year before the divorce proceedings begin. If applications are filed in different provinces, whichever one was filed first is the one that will be recognized. Though divorce is federally regulated, there are provincial variations. For example, Prince Edward Island, New Brunswick, Quebec and Manitoba each has its own child support policies recognized in the federal Divorce Act. As well, the provinces and territories have their own laws and policies regarding property division, as we shall see.

There are only three grounds for divorce available in Canada:

* By living “separate and apart” for a year with no reasonable prospect of reconciliation (no-fault divorce)

* On the basis of suffering mental or physical cruelty

* On the basis of adultery. Yes, that’s any sex with anyone outside the relationship. As strange as it seems, it applies to same-sex couples.

The federal government’s guide to divorce states that 80 percent of divorcing couples use the grounds of living separate and apart. The couple can determine when they started living separate and apart even if they stayed living in the same house or apartment for financial or other reasons. The law acknowledges that you can be physically close but a million miles away.

“There needs to be some triggering event and recognition of the event,” like sleeping on the couch, says Raso.

If a member of the couple doesn’t want to wait a year, or otherwise wants to pursue a divorce based on adultery or cruelty, that person must provide proof that one or the other took place. That’s a lot of work.

“It’s very rare that anybody files under the last two [grounds]. There is no practical benefit. It raises the ante on the divorce and charges the divorce application emotionally. Now you’re more likely to have an adversarial process.”

Claiming adultery or cruelty doesn’t speed things up.

“It’s going to take you virtually as long, if not longer, to have a trial date to prove adultery or to prove mental cruelty as it would to just wait out the year. So you haven’t saved any time and you’ve stirred the hornets’ nest.”

BC lawyer barbara findlay recently represented a BC woman, Ms P, whose husband committed adultery with another man. Under Canadian law adultery was defined as an extramarital relationship between a man and a woman, and Ms P’s initial application for divorce was rejected. Findlay filed a constitutional challenge and the judge read into law a new definition of adultery that allows gay affairs to be considered.

Getting started
Raso says that for anything other than a simple divorce application, it takes an extremely diligent and patient person to pursue a claim. If there are contested issues — who gets what including the kids and the dog — it makes sense to find a lawyer you trust, feel comfortable with and can afford.

A simple uncontested divorce processed by lawyers will cost in the range of $500 to $1,000 while any additional issues like a squabble over assets or custody can dramatically increase the price.

Do-it-yourself divorce kits are available at bookstores. Self-Counsel Press publishes its $49.95 Ontario Divorce Kit with a guide, forms and CD-ROM. The forms in the kit were published pre-Bill C-38 and so are heterosexist, but the CD-ROM allows you to download updated forms which use the current language of “person one” and “person two.”

Dividing the assets
Division of assets falls under provincial, not federal, jurisdiction so there are variations in rules. At its core, marriage entitles separating spouses to a formula for property division, something common-law status does not.

According to Ontario’s Family Law Act, Raso says, the net growth of the parties’ assets and property during the course of the marriage are usually divided more or less equally.

Under the act, each half of the couple is entitled to 50 percent of the gross increase in value during the marriage and 50 percent of the matrimonial home. So if the couple started with nothing and had $100,000 in assets at the time of the divorce, each person gets $50,000. Each divorcee remains in possession of the property he or she brought into the marriage — with the exception of a house that became the matrimonial home which is split equally.

The only assets regulated by the feds are Canada Pension Plan credits. A divorcing couple can choose to have the CPP credits each person earned while married divided equally, which would benefit a non-wage-earning partner.

That’s the letter of the law, but things can be tinkered with.

“The courts have broad dis-cretion in making judgments or awards that will allocate property to one party or the other,” says Raso.

As well, a couple can reach their own agreement on division of property and assets. Raso says that about 25 percent of divorcing couples do this.

Couples who are parting on particularly friendly terms can find lawyers who practise collaborative law which allows the two parties and their lawyers to sit down and draft an agreement that works in the best interests of everyone involved. This helps defuse the emotional aspect often connected with squaring off in court.

Support and kids
Divorcing partners are automatically entitled to apply for spousal support or be asked to pay it, a right also granted to common-law couples who have been together for three or more years. The length of the relationship makes a difference in the amount of support awarded.

While splitting the assets doesn’t take into account what each person brought to the marriage, support does. That is, if someone comes into the relationship poorer than the other and does not contribute financially, that person might still be entitled to support. Raso says the key factor is economic dependency — preventing one spouse from suffering economic hardship when the relationship ends. The goal, states the federal guide, is to “help each spouse become economically independent within a reasonable amount of time, if possible.”

Child custody and support are determined according to the child’s best interest. Both are outside the bounds of marriage (your right or obligation to support a child is the same whether married, unmarried or common-law) although a judge will often make sure that there are satisfactory child-support agreements in place before issuing a divorce.

How long does it take?
In the case of a no-fault divorce, a petition for divorce can be filed one year after the separation. The respondent usually has 30 days to answer or, if they choose not to contest the divorce, not respond at all. A judge then reviews the documents and makes a divorce judgment. If neither party appeals then the divorce is final in 31 days.

If the divorce is contested, and particularly if it is on the grounds of cruelty or adultery, the process may take much longer, and could include an appearance before a family court judge.

Why bother to divorce when you can justseparate?

Couples who break up are not required to divorce. A separation agreement addresses division of property and support, and can be worked out between the couple or through mediation, collaboration or with the assistance of lawyers.

But divorce is necessary to be able to remarry. Some people also need it to give themselves closure.