Rights and obligations

We have come a long way in gaining legal rights for gay and lesbian couples. In recent years, a decision by the Supreme Court of Canada resulted in provinces being required to create equality between same-sex couples and opposite-sex common-law couples. This gave us rights, for example, to claim support from our partners, to make contribution to our partners’ RRSPs, and to receive RRSPs or RRIFs from our partner without paying tax. We could not marry, however, and therefore were excluded from the rights and laws applicable to married couples.

The court decisions in British Columbia and Ontario have now made it legal in those provinces for same-sex couples to marry. While there is currently an attempt by a couple of groups to obtain leave to appeal the Ontario decision to the Supreme Court of Canada, it seems unlikely that such leave will be granted, and so the Ontario decision would remain in effect.

In addition, the federal government has proposed legislation that would make marriage between same-sex couples legal across the country. Assuming the Supreme Court finds the legislation constitutional (and this seems likely), the legislation, if not put on the back burner by the new prime minister, will be voted upon. Even if the legislation is found not to be constitutional, or it is either defeated in the House of Commons or withdrawn from consideration, none of these events will affect the legality of same-sex marriage in Ontario.

So, what is marriage all about anyway, love and commitment?

Well, in fact, marriage is also about legal rights and obligations, which currently are not in place for same-sex couples. The two most obvious legal ramifications to a same-sex couple marrying are the applicability of certain provisions of the Family Law Act not currently applicable to unmarried couples (whether same-sex or opposite-sex), and certain rights to property upon the death of a spouse.

If a same-sex couple marries, that couple will become subject to the community of property rules set out in the Family Law Act. This means that if a same-sex couple marries and subsequently separates, either member of the couple will be able to apply to court for a division of property.

Basically (subject to qualifications and exceptions), at the end of a marriage, each member of the couple is entitled to share 50 percent of the growth in assets of the couple during the marriage, no matter who owns those assets.

Here’s how it works. Sue and Kathy marry, and, at the time of their marriage, Sue has no assets and Kathy has $100,000 in assets. At the time they separate, Sue has $50,000 in assets, and Kathy has $200,000 in assets. Upon application to the court, Sue would be able to require Kathy to pay her $25,000. This is because Sue has gained $50,000 in assets during the marriage, while Kathy has gained $100,000 in assets. A $25,000 payment by Kathy to Sue results in each of them gaining $75,000 from the marriage.

When it comes to the home you live in, the rules are even more extreme. While normally the assets prior to the marriage are not taken into account in these calculations, the home in which the couple lives is taken into account, whether or not either party has owned the home before marriage, and regardless of the amount of money that each has contributed to the home. I suspect that few couples getting married realize the legal impact of their decision, should they separate.

It is legal for a couple to enter into a contract (called a marriage contract) to exclude their relationship from the applicability of these provisions of the Family Law Act, and to create your own rules concerning how property is to be divided upon separation. Preparing such an agreement, in my view, if you intend to get married, is an important way of deciding in your own minds what kind of property arrangements you wish to have upon separation, and in fact during the marriage, rather than having the government do it for you.

On the positive side, if a same-sex couple marries, and one of them subsequently dies without a will, the Succession Law Reform Act will cause all of the assets of the deceased spouse to pass to the surviving spouse, unless the deceased spouse has children, in which case the value of the assets automatically passing to the surviving spouse may be reduced.

We as a community must recognize that having the right to marry and getting married are two entirely separate issues, and while we can celebrate the former, we must approach the latter with careful consideration and caution.

* Ted Mann is a lawyer with Mann & Associates.