In July 2005 the Supreme Court of Canada declared same sex marriage legal in all provinces across Canada. The enactment of the Civil Marriage Act made Canada the fourth country in the world and the first outside of Europe to recognize gay marriage as legal.
However, there are always a certain percentage of marriages that will end in separation or divorce. An article in the Washington Post in 2014 reported that the divorce rate for same-sex couples is about the same as heterosexual couples, at about 38 per cent in Canada.
For Canadian same-sex couples who are married the process for obtaining a divorce is straightforward. Gay spouses go through the same process as heterosexual couples do when it comes to the termination of the marital regime. Marriage is marriage and it is treated the same. The so called “collateral” issues of parenting, child and spousal support and division of property and debts is more complicated. In addition, many couples never marry and instead live together as unmarried spouses.
Couples who may have lived together for a long time before marriage was on the table may also find that matters are more complicated. For example, the length of their marriage may not accurately reflect the life the couple built together. This could affect the amount of spousal support one spouse might have to pay as the length of the marriage (or relationship) is an important factor in this calculation.
Another area of concern may be the parenting of any children the couple has together. When it comes to parenting, emphasis is often placed on the rights of biological parents. If the non-biological parent has not legally adopted a child, custody rights could favour a biological parent. This can be difficult if the non-biological parent has played a large part in the child’s upbringing yet doesn’t get this recognition from the court.
If both parties wish to find a fair and equitable division of assets, sharing of the financial circumstances from the relationship and parenting arrangements that work for the whole family, including the children, consensual dispute resolution processes can be used. In most cases making direct arrangements between the clients and avoiding court or other adversarial processes is preferable.
Mediation is one such option, but Collaborative Process is becoming more and more popular with those wanting to avoid litigation or other adversarial processes when addressing the resolution of the issues that arise from the breakdown of the relationship. The divorce must be completed through a court process, but this typically proceeds on consent after the resolution of the other issues and the completion of a comprehensive Separation Agreement in a Collaborative Process or mediation.
Collaborative Process requires each party to retain their own lawyer to represent their needs but instead of working in an adversarial context, Collaborative lawyers are specially trained to assist their clients to reach a settlement that works for both of them and the family outside of the court process. In fact, they sign a contract in advance in which they commit to resolving the matter between themselves without going to court. The professionals also sign the agreement, so that they cannot represent one of the parties in court in the future. In addition, the process often includes other neutral, specially trained professionals to assist the couple to resolve their issues, including Family Relations and Financial professionals.
Collaborative lawyers are trained to:
- Assist clients in finding cooperative solutions to their issues
- Focus on solutions that consider the interests of both parties and other family members
- Provide real time advice about the applicable legal rights and obligations of the family members
- Support partners to communicate openly with one another
- Ensure that both clients have the necessary financial information to assist them to make informed decisions
- Ensure that the process is safe and respectful.
There are many benefits of using Collaborative Process for anyone who has had a breakdown of a marriage or relationship, but it can be particularly beneficial for same-sex couples whose relationship history may be more complicated due to changes in the law, both statutory and as a result of court decisions which have occurred over the years.
To learn more about Collaborative Process, how it can be beneficial in your separation and how it can assist you contact James Jeffcott at [email protected].