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Difference between revisions of "Same Sex Relationships and Issues Affecting Transgender and Transsexual People"
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Same Sex Relationships and Issues Affecting Transgender and Transsexual People (view source)
Revision as of 22:05, 15 August 2017
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==Same | ==Same sex relationships== | ||
Legislated discrimination in British Columbia between opposite- and same | Legislated discrimination in British Columbia between opposite- and same sex relationships has steadily been erased in the context of family law. To quote <!--spelled with lower case on purpose-->[http://www.barbarafindlay.com/ barbara findlay QC], a tireless advocate for queer rights, from a speech to the [http://www.cba.org/bc/home/main/ Canadian Bar Association British Columbia] a number of years ago: | ||
<blockquote>"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."</blockquote> | <blockquote>"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."</blockquote> | ||
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 ''[http://canlii.ca/t/84g5 Adoption Act]'' is one of the few in Canada that permit adoption by same | 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 ''[http://canlii.ca/t/84g5 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. | 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 | 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. | ||
===Marriage=== | ===Marriage=== | ||
As a result of the 2005 federal ''[http://canlii.ca/t/7w02 Civil Marriage Act]'', same | As a result of the 2005 federal ''[http://canlii.ca/t/7w02 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 | 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. | ||
===Children=== | ===Children=== | ||
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<blockquote>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.</blockquote> | <blockquote>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.</blockquote> | ||
<blockquote>"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 | <blockquote>"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."</blockquote> | ||
''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC): | ''[http://canlii.ca/t/1w5d8 Bubis v. Jones]'', 2000 CanLII 22571 (ONSC): | ||
<blockquote>Application by mother for vary order to obtain custody. Mother in lesbian relationship following separation from father. Court finding father prejudiced against lesbians, that same | <blockquote>Application by mother for 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.</blockquote> | ||
<blockquote>"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."</blockquote> | <blockquote>"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."</blockquote> | ||
<blockquote>"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."</blockquote> | <blockquote>"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."</blockquote> | ||
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*other persons are also under a legal obligation to care for the child. | *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 | 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 the 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. | ||
===Divorce=== | ===Divorce=== | ||
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In a very recent case here in British Columbia ''[http://canlii.ca/t/gpphw 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: | In a very recent case here in British Columbia ''[http://canlii.ca/t/gpphw 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: | ||
<blockquote> | <blockquote>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.</blockquote> | ||
<blockquote> | <blockquote>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.</blockquote> | ||
===Child support=== | ===Child support=== | ||