When it comes to same sex divorce in Ontario, the journey can hold distinct challenges despite the equal legal footing established with the legalization of same-sex marriage in 2005. While LGBTQ+ couples have the same rights to marry and divorce as opposite-sex couples, the practical application of these laws in a separation isn’t always straightforward.
Specific legal nuances often emerge during a same sex separation, particularly concerning parenting and non-resident spouses. If you are going through a same sex divorce or separation, connecting with a family law lawyer is the most effective way to gain clarity on how the law affects your situation.
Are the Divorce Laws the Same For Homosexual Couples?
Yes—Ontario’s divorce laws treat all married couples the same, regardless of gender or sexual orientation. That means you can apply for divorce on the same grounds (usually one year of separation) and go through the same legal steps.
What can be different are the personal or legal dynamics that apply in same-sex relationships, especially when it comes to parenting roles or the recognition of the relationship outside of Ontario.
How Does Spousal Support Work For Same Sex Couples?
Same sex spouses are just as entitled to spousal support as opposite sex spouses. Whether you’re eligible depends on your roles in the relationship, financial need, and how long you were together, not your gender or sexual orientation. A family law lawyer can help figure out if support is likely in your case, and how much might be expected.
Property Division Can Be Complex In Any Divorce – Same Sex or Not
If you were legally married, you’re entitled to an equal division of the family property under Ontario’s Family Law Act. This includes assets acquired during the marriage. The rules are the same for opposite sex and same sex divorce and are best discussed with a family law lawyer.
However, if you were in a common law relationship, those property division laws don’t apply automatically. You may need to make a special claim for a share of property, another case where working with a lawyer is beneficial.
Parenting and Child Support in Same Sex Divorce
The biggest legal differences in same sex separations often show up when children are involved. If both spouses are legal parents (through birth or adoption), they have the same rights and responsibilities as any other parents.
But if only one person is the biological or adoptive parent, the other may have to prove they’ve been acting in the role of a parent to seek parenting rights. The same goes for child support. Someone who isn’t a legal parent may still be ordered to pay support if they’ve been parenting the child but the court will look at the specifics of the relationship.
This can get complicated, so it is especially important to get legal advice if children are part of your separation.
If You’re Living Outside Ontario, Things Can Get Tricky
If you got married in Ontario but now live in another province or country, you might run into some legal challenges. Under Canada’s Divorce Act, at least one spouse needs to be living for at least twelve months prior in the province where they apply for divorce.
That’s a problem for couples who came to Canada to get married but now live somewhere that doesn’t recognize same sex divorce. While proposed changes to the law may make things easier, the current rules can make it difficult to finalize a divorce without legal residency.
Even if you can get divorced as a non-resident, you will not be eligible for things like spousal support or property division under the Divorce Act. A family lawyer can explain whether your case qualifies and help you explore your options.
What If You Aren’t Legally Married?
If you were in a long-term common law relationship, you won’t go through the same process as married couples, although you would still need to sort out things like property, support, or parenting. Common law separations don’t require a formal divorce, but they can still be legally complex. It is a good idea to speak with a lawyer to find out what you are entitled to and what responsibilities you may have to your former partner or children.
Same Sex Divorce Checklist
- Confirm Legal Marriage Status. Ensure you were legally married in Canada or in another country where same sex marriage is recognized. A marriage certificate is required to begin the divorce process.
- Meet the Separation Requirement. To file for a no-fault divorce, you must have been living separately and apart for at least one year even if you are still under the same roof. Making a claim that the separation is a result of adultery or cruelty are other ways in which to make a request for a divorce.
- Determine Residency Eligibility. At least one spouse must have lived in Ontario for the 12 months before filing for divorce. If both spouses now live outside Canada, you may not be eligible unless specific criteria are met.
- Consider Spousal Support. Evaluate whether either spouse may be entitled to support based on income, roles in the relationship, and duration of the partnership. This applies to both married and long-term common law couples.
- Gather Financial Documents. Collect tax returns, income statements, mortgage documents, bank account info, and anything related to shared property or debts.
- Parenting and Legal Parent Status. If children are involved, determine whether both spouses are legal parents (biological or adoptive). If not, legal advice is especially important for parenting rights and support arrangements.
- Review Property and Assets. List all assets acquired during the marriage. Married couples are subject to property equalization; common law couples are not unless one partner makes a special legal claim.
- Consider a Separation Agreement. A formal agreement can outline division of property, parenting time, and support. It is especially helpful in avoiding disputes later on.
- File A Divorce Application. You can file jointly or alone, with or without a lawyer. Include your original marriage certificate and any necessary court forms.
- Get Legal Advice. Even if the separation seems amicable, speaking with a family law lawyer ensures your rights are protected and that you do not overlook any key issues—especially in cases involving international marriage, non-residency, or step-parenting roles.
If You’ve Decided on Divorce, Talk To a Lawyer Early
While the core divorce laws in Ontario treat all couples equally, the legal details of same-sex separation can be more nuanced. From parenting to residency issues, it’s not always a straightforward path.
A family law lawyer can help you avoid delays, understand your rights, and protect your interests—especially if you’re dealing with non-traditional parenting roles, international marriage, or property that’s tough to divide.
Are You Considering a Same Sex Divorce? Call Us For Advice, Support and Representation You Can Trust
If you’re unsure where to begin in your separation, start with advice from an experienced family law lawyer. At Scharff Nyland Chambers LLP, we can look at your situation, give you legal recommendations, and represent you in any negotiation. Whether you’re in Barrie, Collingwood, Wasaga or the GTA, we have a family law lawyer who will stand by you when it counts. It can make all the difference in reaching a fair and uncomplicated resolution.
Reach out today through our website or give us a call at 1-866-721-5851 to book a consultation.
***The information provided in this blog is for general informational purposes only and should not be construed as legal advice. If you have legal questions, we strongly advise you to contact us.
