June 19, 2003 By: Pam MacEachern
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*Readers should not attempt to apply the information provided herein to their circumstances without seeking legal advice. This information is not intended to provide legal advice or opinion, as neither can be given without reference to the specific facts, event and situations of individual circumstances. If you would like to consult with a family law lawyer, contact Pam MacEachern at 613-238-8242.

June 19, 2003 – The Ontario Court of Appeal released its decision in Halpern et al v. Attorney General of Canada on June 10, 2003. This decision had the effect of granting same sex couples the right to marry in Ontario, effective immediately.

On June 17th, 2003, the Federal Government announced that it would not appeal the Ontario Court of Appeal ruling allowing same-sex marriages.

For more information on the decision, link to Egale web site: http://www.egale.ca

Thinking of Getting Married?

Many same sex couples are rushing to get married in light of the Halpern decision. Legislation that deals with rights and obligations within marriage, such as the Divorce Act and the Ontario Family Law Act ("FLA"), have not been revised to specifically apply to same sex marriages. For example, the provisions of the FLA that govern property rights of married spouses use a definition of spouse that is limited to "a man and a woman who are married to each other". Such definitions will be unconstitutional if same sex marriages are allowed to stand, which will lead to same sex married couples having the same rights and responsibilities as opposite sex married couples.

In family and estates law, there are significant differences between being married or living in a common law relationship. These differences should be carefully considered by individuals before they say "I do". Here are a few:

1. Spousal Support: Upon marriage, same sex couples will automatically have a spousal support obligation to each other. This happens automatically upon marriage, unless the parties enter into a marriage contract that provides otherwise.

This is different than the legal situation that applies to unmarried same sex couples. A spousal support obligation only arises for unmarried same sex couples after they have cohabitated continuously for not less than three years or if they are in a relationship of some permanence and are the natural or adoptive parents of a child.

For example, if you are married for one year, and separate, you will have a spousal support obligation to your spouse and vice versa. If, however, you are not married and have only cohabitated for one year (and do not have a child together), and separate, you will not have a spousal support obligation to your spouse, and vice versa.

This spousal support obligation is a significant one. It requires spouses to support each other during the marriage and, very often, after separation. In many circumstances, spousal support obligations after separation can continue for a number of years, possibly longer than the period of time that the parties' cohabitated, possibly for the lifetime of the recipient spouse, and possibly even after the payor's death.

2. Sharing Property: Same sex married couples will have the same rights and responsibilities to equalize family property upon marriage breakdown as opposite sex married spouses. This happens automatically upon marriage, unless the parties enter into a marriage contract that provides otherwise.

This is a dramatically different legal situation than that which applies to common law same sex or opposite sex partners. Common law partners do not have any rights to equalize family property after separation. They remain separate as to property, although they may have claims against each other's property under common law principles such as unjust enrichment. This type of claim, however, is very different than the automatic entitlement to equalize family property that applies to married couples.

Family property includes all assets and debts acquired during the marriage, with some exceptions that should be specifically discussed with a family law lawyer. Family property includes such assets as pensions, severance entitlements, stock options, registered retirement savings, and real estate.

3. Special Treatment for the Matrimonial Home: The property sharing provisions of the FLA that apply to married spouses contain special provisions for the matrimonial home. When equalizing family property between married spouses, the special treatment of the matrimonial home can often create unexpected and unfair results. Again, this happens automatically upon marriage, unless the parties enter into a marriage contract that provides otherwise.

How does this happen? The FLA allows spouses to deduct the value of the assets and debts they owned on the date of marriage from their family property. This means that the spouses only equalize the value of the property they acquired during the marriage (with some exceptions as noted above). But the FLA specifically does not allow a deduction for a matrimonial home owned prior to marriage. In other words, if you owned the home you are residing in at the time of separation prior to marriage, the total value of the home is included in the value of your net family property without any credit to you for the value of the equity you had in this home prior to marriage.

4. Cohabitation Agreements: If you have a cohabitation agreement, it automatically becomes a marriage contract when you marry, unless the agreement contains clear language to the contrary. In many situations, however, cohabitation agreements between same sex partners have not provided for what should happen to the parties' rights and responsibilities if their relationship ends after a marriage.

If your cohabitation agreement does not address the legal issues that arise after marriage and specifically provide for what happens on marriage breakdown, the FLA will apply. The result may be, for example, that you do have a spousal support obligation or an obligation to equalize family property after marriage, even though you have a cohabitation agreement that waives these rights during cohabitation (prior to marriage). If you have a cohabitation agreement with your partner, you should speak to a family law lawyer prior to getting married to understand the legal implications of marriage on your agreement.

5. Will's Executed Prior to Marriage Become Void: Upon marriage, any will made prior to the marriage automatically becomes void. The only exception to this is a will specifically made in contemplation of the marriage. If you get married, you need to execute a new Will. You should also review your complete estate plan with a lawyer in order to ensure it addresses your new circumstances.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law