Same Sex Relationships and Issues Affecting Transgender and Transsexual People
Same sex relationships
Legislated discrimination in British Columbia between opposite- and same-sex relationships has steadily been erased in the context of family law. To quote barbara findlay QC, a tireless advocate for queer rights, from a speech to the Canadian Bar Association British Columbia a number of years ago:
"Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop."
She is entirely correct. As far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the equality rights of gays and lesbians, and our provincial Adoption Act is one of the few in Canada that permit adoption by same sex couples.
Gays and lesbians are just as entitled to pursue claims relating to the care of children, child support, spousal support, and the division of property as straight people are. Sexual orientation plays no part in the division of family property, nor is it a factor in determining issues relating to children or support.
How does family law intersect with gay and lesbian relationships? In every way. There is no relief known to family law of which straight couples can avail themselves that same sex couples cannot.
As a result of the 2005 federal Civil Marriage Act, same sex couples can legally marry throughout Canada. Of course, not everyone can marry, such as close relatives or minors under a certain age. See the Marriage & Married Spouses section of the Family Relationships chapter for more information about the capacity to marry, valid marriages and invalid marriages.
It's not just Canadian couples who can marry. Anyone from anywhere can get married in Canada, as long as they meet the Canadian criteria for a valid marriage. However, while a Canadian marriage is certainly legal in Canada, it may not be recognized as a valid marriage at home. If a couple's home country does not recognize same sex marriages as valid marriages, the Canadian marriage is unlikely to be valid in that country.
Whether the battle over a child is between two parents of the same gender or between parents of opposite genders or families of more than two parents or guardians, the legal test that the parents and the court should consider is the same: what arrangements are in the child's best interests? That's the court's only concern. The courts have been crystal clear that the sexual orientation of the child's parents is only one of many factors to be considered and is often a non-issue. This is what a few judges have had to say:
Anger v. Anger, 1998 CanLII 4490 (BCSC):
Mother sought an order that the children live primarily with her. Father opposed application as he found mother's sexual orientation "repugnant on religious and moral grounds." Court finding father doing everything he could to cut mother out of children's lives, and accepting psychologist's recommendation that children should live with mother. Mother's application allowed. No weight given to mother's sexual orientation.
Murphy v. Laurence,  O.J. No. 1368 (ONSC):
Applications by biological mother and mother's lesbian partner for custody and child support. Parties had three year unmarried relationship in which mother remained at home and partner worked outside the home. Both acted as parents to child, and following separation, partner exercised liberal access to child. Child later, by agreement, going to live mostly with partner. Court finding child to have benefited from care of both women, and ordering joint custody with primary residence of child to mother based on blood tie. Negligible access given to father in light of history of disinterest in child. No weight given to mother's sexual orientation.
"The best interests of [the child] are, of course, what will govern any decision relating to custody in this matter. In this fundamental principle, same sex parents seeking custody are no different than opposite-sex parents seeking custody."
Bubis v. Jones, 2000 CanLII 22571 (ONSC):
Application by mother to vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same sex preference of parent merely one of many factors to be considered, and in light of positive psychologist's report and change in mother's employment and stability, giving custody to mother.
"Homophobia is being replaced by reason and bigotry by tolerance — but not completely, since history tells us that, in matters of this nature, there will always be pockets of prejudice."
"There is no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than are families with homosexual parents."
J.S.B. v. D.L.S., 2004 CanLII 5031 (ONSC):
Mother and father sought sole custody of their children. The parties were Mohawk. The father argued that it was in the children's best interests to reside with him as the mother's new same-sex relationship was "incompatible with traditional Mohawk ways".
The Court acknowledged that some of the many reasons couples choose to marry are intimacy, companionship, and societal recognition. These reasons are independent of the sex or gender of the individuals. Both same-sex and opposite-sex couples are capable of forming loving and lasting relationships.
The sexual preference of a parent is but one of the many factors courts consider in determining the best interests of children. While the father had recently been charged in relation to his substance abuse, the mother had found a home and a job, obtained counselling for the children, and enrolled the children in extracurricular activities. The best interests of the children were better served by residing with the mother. The Court awarded sole custody to the mother.
Regardless of your sexual orientation or identity, if you qualify as a parent for the purposes of the Family Law Act, or the child qualifies as a child of the marriage for the purposes of the Divorce Act, child support will be payable by the person who has the child for the least amount of time to the person who has the child for the most amount of time. Child support will be payable in the amount specified under the Child Support Guidelines unless the parent paying support, the payor, fits into one of a very narrow range of exceptions:
- payment of support in the usual amount would be too much and cause "undue hardship" (the recipient of support may ask for an increased amount of support if payment of the usual amount would be too little and also cause undue hardship),
- the payor is responsible for the care and control of the child for more than 40% of the child's time,
- the child is 19 or older,
- the payor earns more than $150,000 per year, and payment of the table amount would result in an unfair windfall to the recipient, or
- other persons are also under a legal obligation to care for the child.
The only one of these exceptions that has any special relevance to same sex couples is the last: where another person is also under an obligation to support the child. Assuming there is another parent in the picture apart from the other party to the relationship, that other parent will also be obliged to contribute to the support of the child. In Murphy v. Laurence and Rogers, the biological mother of a child was entitled to receive child support from both her former lesbian partner and the child's father.
The Divorce Act no longer requires spouses to be of opposite genders to qualify for a divorce order. Oh happy day.
Issues affecting transgender and transsexual people
To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of the same or opposite genders and only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, transgender and transsexual people may well encounter difficulty in dealing with family law matters. This discussion offers only a gloss on some of the issues affecting this community.
If you have a family law problem and your orientation, gender or identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to.
As a result of the 2005 federal Civil Marriage Act, gender is irrelevant in determining the ability of a couple to marry.
Those who have discovered another self-identity during a relationship may find their new identities hotly at issue in the event that the living arrangements for any children must be decided in court. The problem here is that while shows like "Will and Grace", "The Birdcage" and "The L Word" have made homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the transgender community.
It can be very difficult for people, including ex-partners, to understand transgender issues, and this problem is especially acute in courtroom discussions about the care and control of children. Often the most important task is to demystify the person's self-identity and explain why their self-identity has no impact at all on their ability to parent, nor on the expected outcomes for the children.
On the bright side, the single reported case I was able to find in researching transgender and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In Forrester v. Saliba, 2000 CanLII 28722 ONCJ, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transitioning to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transitioning process. Here are some interesting excerpts from the decision:
"I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination."
"The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being."
The mother's application was dismissed.
In a very recent case here in British Columbia K. (N.) v H. (A.), 2016 BCSC 744, the larger dispute centered around the parents’ disagreement over gender transition therapy involving their 11 year old child. The mother supported the transition whereas the father did not. At issue before Justice Skolrood in that proceeding was whether or not the child was entitled to an independent voice in the litigation. The court held that this was appropriate, saying:
39 I am satisfied that J.K. should be permitted to participate directly in this proceeding. To my mind, this case is different from the many family law cases that come before the courts in which the views of the child are sought on issues relating to guardianship and parenting time, and where those views are typically presented through third party reports.
40 I agree with Ms. findlay's characterization that this case is really about J.K. and his role in determining his own future. In my view, these issues cannot be properly considered without J.K.’s direct participation, nor would it be fair to J.K. for the court to attempt to do so.
Transgender issues have no impact at all on the determination of child support. If you are a parent or qualify as a stepparent within the meaning of the applicable legislation, child support will be payable or receivable. End of story.
The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the transgender issue, be prepared to face some resistance. The problem will lie in establishing the legitimacy of the financial dependency arising from the transgender issue; in other words, the problem will lie in convincing the judge dealing with the matter, if the matter has to go to court, that the issue you are dealing with isn't one of choice or a voluntary financial dependence.
The Divorce Act no longer requires spouses to be of opposite genders, whether at the end of their marriage or at its beginning, to qualify for a divorce order.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Todd Bell, January 2019.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|