When same-sex couples separate or divorce in B.C., understandable questions arise about issues such as the right to support and property/debt division. But...

When same-sex couples separate or divorce in B.C., understandable questions arise about issues such as the right to support and property/debt division.

But what happens if there are children from the relationship too?

Since the passing of the Civil Marriages Act in 2005, same-sex couples have been afforded the same legal and financial rights as opposite-sex couples in Canada.

With all matters involving children, however, the interests of the child are the primary consideration for the B.C. courts.

Child custody and child support matters between same-sex couples who separate can become contentious but, but must always be resolved in the child’s best interests.

How can same-sex couples have children in B.C.?

Under the Assisted Human Reproduction Act, same-sex couples have the same rights as opposite-sex couples when it comes to starting a family.

With increasing access to biological methods of conception, the instances of same-sex couples separating with children are growing in B.C. and across the country.

Same-sex couples can start a family using one of two assisted reproduction methods:

Artificial insemination: sperm is directly inserted into a woman’s cervix, fallopian tubes or uterus. In vitro fertilization: the egg is fertilized by the sperm in a laboratory glass and placed into the uterus.

In some cases, the embryo may be carried by a surrogate mother, further complicating matters because of the surrogacy laws.

However, there is another way for same-sex couples to have children …

Adoption rights in B.C.

There are several different types of adoptions available to same-sex couples in B.C.:

Public adoption: a couple adopts a child from foster care. Private adoption: adoptive families are connected with parents or expectant parents directly. International adoption: a couple is connected with children and parents overseas. Relative adoption: a couple adopts from their family.

Same-sex couples are legally entitled to equal adoption rights in B.C. and across Canada but, in practice, they often endure difficulties that opposite-sex couples don’t experience.

Same-sex couples and child custody in British Columbia

With the best interests of the child the main consideration after any separation in B.C., same-sex parents will normally share custody 50/50 — provided both parents are capable, and the judge decides that the child is not placed in any danger by doing so.

The child is generally deemed to benefit from having both parents playing an active role in his or her life. However, for any set of parents to equally share time with the child is sometimes impractical, and another arrangement may be preferable.

Common law same-sex couples vs. married same-sex couples

The term “common law couple” is not generally used in legal circles in British Columbia.

However, under the Family Law Act, if “unmarried spouses” have lived in a “marriage-like relationship” for two years, the same rules apply as for married couples upon separation (regardless of sexual orientation).

This means:

They are entitled to custody of children from the relationship (providing it is in the best interests of the children). They may be entitled to spousal support and child support. They share assets accumulated during the relationship equally. They share liabilities accumulated during the relationship equally. They share the increase in value of any assets acquired before the relationship.

To avoid serious issues upon separation, it is often a good idea for same-sex couples to create and sign a legally enforceable cohabitation agreement before they live together.

What determines spousal support in same-sex couples?

Same-sex couples who are married or in a marriage-like relationship for at least two years have the same entitlement to receive spousal support in B.C. as opposite-sex couples.

Whether you receive such support temporarily, permanently or not at all depends on your respective incomes, means and needs.

Judges will consider how long you have lived together, your respective contributions to the relationship, whether there was any order, agreement or arrangement relating to the support of either spouse and whether there are children from the marriage. 

What determines child support for same-sex couples?

Child support is money paid regularly by one parent to the other to help raise a child. There are two basic types of child support in British Columbia:

The basic monthly support amount for food, shelter, clothing, etc. Special or extraordinary expenses, such as the costs of medical expenses, dentistry, tutoring, tuition, etc.

If a gay couple has children together, one partner may claim child support after a relationship breakdown. However, to claim support, you must generally have the child in your care for more than 40 percent of the time.

If, for instance, the child stays with you 75 percent of the time, you are entitled to child support regardless of your income (the amount of support depends on your partner’s income).

If, however, you split time with the child 50/50, the judge will compare your incomes and the higher-earning parent must usually pay child support based on the difference. 

What determines property and debt division for gay couples?

The same basic property and debt division rules apply to same-sex couples as opposite-sex couples in B.C.

Namely:

You generally keep whatever you brought into the relationship. Anything you accumulated during the relationship (or anything that increased its value during that time) is divided 50/50. Gifts or inheritances you brought into the relationship or received during the relationship are generally excluded (but the increase in value may be divided). Debts incurred during the relationshipare split 50/50.

In reality, these are guidelines only, and many complexities can arise with property and debt division for any separating couple. The circumstances and relative contributions of each partner to the relationship may need to be considered, among other factors. 

If you live in the Vancouver area and need legal advice on same-sex relationship separation issues, speak with a family lawyer at Spectrum Family Law. We’ll help you assess your options.

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