Category: Marriage

Finally - Canadian divorce available to non-resident queers

8/30/2013

Since same sex marriage became legal in Canada ten years ago, non-Canadian queers have been flocking here to marry.

That's all very well: but what happened if the spouses separated?

They learned to their shock and chagrin that though Canada would marry them, Canada would not divorce them. There was a requirement under the Divorce Act that a person had to be resident in a Canadian province for a year before they could file for divorce- a requirement impossible to meet for many non-Canadians.

The Divorce Act has now been amended to provide that non-residents who married in Canada can get a divorce. The new provisions came into effect August 14, 2013.

The requirements are that the spouses be living apart for at least one yer; neither of them lives in Canada when the divorce is applied for; both of the spouses are now living in a state in which divorce for same sex partners is not available because that state does not recognize same sex marriage.

The application for the divorce must be made in the same province where the marriage was performed.

0 Comments

Married to an American? They can take you home now...

8/6/2013

0 Comments

U.S. citizens living abroad with their non-U.S. partners can now bring their partners home with them.
As a followup to last month's announcement permitting lesbian and gay Americans to sponsor their partners for permanent residence, the U.S. has announced that it will extend the same visa rights to same sex partners as to opposite-sex partners. So Americans can bring their partners home, or travel with them.
For the whole story: http://www.reuters.com/article/2013/08/02/us-usa-gays-visas-idUSBRE9710NT20130802

0 Comments

Happy Day in the U.S.of A!!

6/26/2013

1 Comment

Today is a big day for U.S. queers.

The U.S. Supreme Court today ruled against the "Defence of Marriage Act", a federal law which provided that same sex partners could not get federal spousal benefits even if they lived in a state where same sex marriage was permitted, and had married.

The case began when Edith Windsor's partner, Thea Spyer died. The two had married in Canada in 2007, after being engaged for forty years.

Yes, forty years.

After her partner passed away, the federal government ruled that she had to pay more than $300,000 in additional estate taxes because the federal government did not recognize Windsor's marriage to Spyer.

Windsor, now 84, celebrated her victory along with the rest of the country.

1 Comment

Have a Partner? READ THIS! The law is changing...NOW

2/18/2013

1 Comment

Our communities are completely unaware of the fact that as of March 18, 2013, common law partners will be treated the same as married partners, if they break up. And that means: 50% of the family property and 50% of the family debt to each of you! Read on...you can choose to opt out if you want to...

Who Gets What When?

Division of Property on Breakup of a Marriage or Common Law Relationship under the Family Law Act

The Family Law Act comes into force in B.C. on March 18, 2013. This pamphlet talks about what your situation will be if you break up after March 18, 2013.

(If you broke up before March 18, 2013, the old law, the Family Relations Act, applies to your situation).

Who Does the Law Apply To?

The Family Law Act applies to all married couples; and it applies to unmarried couples who have lived together for two years or more. It applies to heterosexual couples, same sex couples, and couples with one or two trans members.

Who Does the Law Not Apply To?

Any couple can contract out of the Family Law Act. That means that the two of you can create your own agreement about how finances will work during your relationship, and how you will divide property if the relationship ends. So, reading through the rest of this pamphlet, bear in mind that if you don’t like the way the law would apply to your situation, you can create your own contract. Then the Family Law Act does not apply.

When Does the Law Kick In?

The law takes effect as soon as the two of you separate.

Who Gets What if We Break Up?

At the moment of separation, each spouse is entitled to a half interest in all “family property”, and is responsible for one half of “family debt”. It doesn’t matter who contributed what to the purchase of the property, or whose name the property or the debt is in.

So what counts as “family property” and “family debt”?

A thumbnail: what you owned, or what you owed, before you got together, is yours. But whatever property, and whatever debt, either of you acquired after you got together, is divided between you 50/50. Certain types of property are excluded.

Now for the details (and the devil is always in the details).

The way the Family Law Act sets it up, unless there is a specific exemption, family property is all real property (real estate) and personal property (money and things) owned by at least one spouse or in which at least one spouse has a beneficial interest on the date of separation. We’ll get to the exemptions in a minute.

The Family Law Act specifies some things which definitely are “family property”, including:

a share or an interest in a corporation;
an interest in a partnership, an association, an organization, a business or a venture;
property owing to a spouse:

as a refund, including an income tax refund, or
in return for the provision of a good or service;

money of a spouse in an account with a financial institution;
a spouse’s entitlement under an annuity, a pension, a retirement savings plan or an income plan;
property, (other than certain trust property), that a spouse disposes of after the relationship between the spouses began, but over which the spouse retains authority, to be exercised alone or with another person, to require its return or to direct its use or further disposition in any way;
the amount by which the value of excluded property has increased since the later of the date:
the relationship between the spouses began, or
the excluded property was acquired.

So what is NOT family property?

The Family Law Act sets out a list of what is not family property:

property acquired by a spouse before the relationship between the spouses began;
gifts or inheritances to a spouse;
a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for:

loss to both spouses, or
lost income of a spouse;

money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for:

loss to both spouses, or
lost income of a spouse;

property referred to above that is held in trust for the benefit of a spouse;
property held in a discretionary trust:

to which the spouse did not contribute;
of which the spouse is a beneficiary; and
that is settled by a person other than the spouse;

property derived from property or the disposition of property referred to above.

Since property acquired before the relationship began belongs to that spouse, whereas the same property purchased by that spouse after the relationship began can be divided 50/50, it will be important – and sometimes difficult – to know when the relationship began and what the value of the property was at that time.

The onus is on you if you want to argue that a particular property is not a family property.

Some Examples, Please?

What about a business that I bought before the relationship, and operated as a sole proprietor during the relationship? The business was worth $100,000 when we married ten years ago. Now it is worth $150,000:

         Because you bought the business before the relationship began, the first          $100,000 is yours. But the $50,000 increase in value is a family property and will be divided 50/50. As the owning partner you would get $100,000 + $25,000 = $125,000; your spouse would get $25,000.

An investment I owned before we got together and have never used during the relationship:

        Not a family property. But if it earns income, the income is a family property and is divided 50/50.

Property one spouse bought and paid for during the relationship :

        Family Property

I’m a doctor. When we got together I had $38,000 in student loans. I racked up another $20,000 in student loans for the first two years we were married. Then I established a family practice, which is incorporated: the name of my company is Dr. Nolan Finefeather Ltd. I take a draw from the corporation which is the source of my income.

       Your professional corporation is a family property since you set it up after you got together.

You are responsible for the first $38,000 of the debt; but the balance is divided 50/50.

Property bought with equal contributions from both spouses, after getting together, but in the name of one partner:

        Family property

Property bought with unequal contributions – say 90/10 – and put in joint names after the relationship began:

       Family property

Disability insurance policy:

       Disability insurance from work may be a family property.

Property owned in both names:

        The important thing is not whose name it is in, but when it was purchased. If it was bought before the relationship began, then each owns the original value of their contribution; but the increase in value after the relationship began is divided 50/50.

Property one of us bought before we got together:

         Not family property; but any increase in value after you got together is family property.

I owned a cottage before we got together. It was worth $150,000 when I bought it, and $200,000 when the relationship started. I sold it for $300,000 two years after the relationship began, and bought another property for $300,000:

         The new cottage continues to be your separate property and is not subject to 50/50 division even though it was bought after the relationship began, because the property was bought in substitution for an excluded property.

Property one of us bought before we got together, sold, and bought another property:

Home we live in:

            There are no special rules for the family home.

            Who bought it? Before or after the relationship began? If before, it is excluded, but the increase in value will be shared.

                Note that it may not be possible to divide the family home if it is located on a First Nations reserve. Talk to a lawyer.

Family Debt

Here’s how the Family Law Act deals with debt:

                    Family debt includes all financial obligations incurred by a spouse:

                    (a) during the period beginning when the relationship between the                                 spouses begins and ending when the spouses separate, and

                     (b) after the date of separation, if incurred for the purpose of                            maintaining family property.

When you separate, each of you is responsible for one half of the family debt. And you continue to be responsible for one half of the debt (a mortgage for example) after separation, if the purpose of the debt is to maintain a family property.

So: take note! You can be held 50% responsible for debt – credit card debt, for example, - that you knew nothing about.

Can a Judge Make a Different Division than 50/50?

Yes, but only in very limited circumstances. Before a judge can intervene, the law says that it must be “significantly unfair” to divide it equally. This is a very strict test and we can expect that a court will not often divide family property other than 50/50.

If you ask the judge to make a different division than 50/50, the factors a judge can take into account in making that decision include:

how long you have been together;
the terms of any agreement you have made between you
a spouse’s contribution to the career or career potential of the other spouse;
whether family debt was incurred in the normal course of the relationship between the spouses;
if the amount of family debt exceeds the value of family property, the ability of each spouse to pay a share of the family debt;
whether a spouse, after the date of separation, caused a significant decrease or increase in the value of family property or family debt beyond market trends;
the fact that a spouse, other than a spouse acting in good faith:

substantially reduced the value of family property, or
disposed of, transferred or converted property that is or would have been family property, or exchanged property that is or would have been family property into another form, causing the other spouse’s interest in the property or family property to be defeated or adversely affected;

a tax liability that may be incurred by a spouse as a result of a transfer or sale of property or as a result of an order;
any other factor, other than the consideration referred to in subsection (3), that may lead to significant unfairness.

In addition to those factors, a court can also consider the extent to which the financial means and earning capacity of a spouse have been affected by the responsibilities and other circumstances of the relationship between the parties.

Even though the calculation of the 50/50 share is only on those properties which are family property, and not excluded property, a judge can order that excluded property be divided between the parties in some circumstances, for example where a family property or debt located outside B.C. cannot be divided; or if it would be unfair not to divide the excluded property given how long the couple was together and what contributions each of them made to the preservation, maintenance, improvement, operation or management of the excluded property.

The Take-Home Messages

1.         Opt Out

The Family Law Act is an “opt-out” regime.

If you don’t like the idea of having the property you acquire during the relationship being divided 50/50 when you break up, or you don’t like the idea of being responsible for 50% of the debt of someone whose spending habits are far different than yours, then…write an agreement.   You are allowed to create an agreement that says that you will NOT be bound by the rules in the Family Law Act, and you can specify exactly who will get what if you separate. If you have such an agreement, it takes precedence over the Family Law Act rules.

If you do not have such an agreement, you will have to take it as it lays under the Family Law Act, if you ever separate.

2.         Keep Records

If you break up, you may find yourself having to establish the value of a property you acquired before the relationship began, as of the date the relationship began. Don’t throw out any financial records, no matter how old (in fact, especially if they are old).

                                                          _______________

This article contains legal information. It is not legal advice. For advice about your specific situation, consult barbara findlay QC or another lawyer.

Current to March 18, 2013

© barbara findlay QC
635-1033 Davie Street
Vancouver, British Columbia V6E 1M7
T 604 251-4356
F 604 251-4373
E [email protected]
W www.barbarafindlay.com
Feel free to reproduce this booklet provided that you credit the author, include this information block, and do not charge for it.

1 Comment

A new one on me - marriage unnecessary because queers can't get pregnant accidentally...

1/28/2013

0 Comments

Same sex marriage should not be allowed because...
Here's the most novel reason I've ever heard.
A former solicitor-general (under George W.Bush) argued against same sex marriage in a case being heard in California. As he explained it, same sex couples don't need marriage because they can't accidentally get pregnant.
Now, if you think there is a logic link missing there, I'm with you!
Check out the full story at
http://www.salon.com/2013/01/28/gay_marriage_opponents_use_knocked_up_defense_in_supreme_court_case/?/2013/01/28/gay_marriage_opponents_use_knocked_up_defense_in_supreme_court_case/?utm_source=twitterfeed&utm_medium=twitter

0 Comments

Civil unions are "marriages" for Canadian law

1/26/2013

0 Comments

An Ontario court has held that two men who entered a "civil union" in Britain are "married" for the purposes of Canadian law, and when the relationship ends, they are entitled to the remedies under the Canadian Divorce Act.
In Hincks v Gallardo, [2013] O.J. No 69, the facts were that the men entered into a civil union in Britain. Same sex marriage was not available; the only choice was a civil union, which offered virtually identical rights and responsibilities to the parties as marriage would have done.
The Canadian court held that because the two did not have the choice to marry, and because the civil union regime was like a marriage in almost every respect, the two were "married" for Canadian purposes, and could be divorced under the Divorce Act.

This case is potentially important for immigration purposes. Till now, Immigration Canada has restricted recognition to marriages, but in light of this case, a Canadian who enters a civil union (also called a registered domestic partnerships) in a country where same sex marriage is not available, should be able to sponsor their non-Canadian partner on that basis.

0 Comments

Canada is suspicious of spouses sponsoring their partners

10/31/2012

0 Comments

Immigration Canada believes that there are "thousands" of fraudulent marriages between Canadian citizens or permanent residents and non-Canadians, and so they are tightening the rules.

Effective immediately, you are allowed to "sponsor" your spouse - defined to include your married partner, someone you have been living with for two years (a common law partner), or someone you are unable to live with because of the laws or social context in your respective countries (for example, consider a Muslim from Iran who is in a relationship with a Canadian: the two cannot live together as spouses in Iran; and Canada may deny a visitor visa).

But now, says Canada, there are two new requirements. According to Jason Kenney, these new requirements are designed to stem fraud arsing out of fraudulent relationships in which a couple marries solely for the purpose of bringing the non-Canadian to Canada, sometimes for a fee.

The first requirement relates to you only if when you made your application for spousal sponsorship, you had NOT been living together for two years AND you have no children. In that situation, the law now requires that you live together for two years after you come to Canada. The rule makes an exception if you are in an abusive relationship. In that case, you should go immediately to your doctor, and report the abuse so it is on record. Then you should go to a lawyer, or call Immigration Canada, and explain why you have moved out.

The second requirement is that once you are yourself sponsored as a spouse, you cannot sponsor anyone else as your spouse till five years have passed from the date you acquired permanent residency.

0 Comments

Every single study says LGB's are good parents

10/30/2012

1 Comment

According to Julia A. MacMillan, professor of pediatrics and associate dean for graduate medical education at the Johns Hopkins University School of Medicine, every study ever done over the last 30 years confirms that children are healthiest if raised by two loving parents, regardless of gender.

In an article in today's Baltimore Sun, MacMillan notes "Every major children's health and welfare organization, including the American Academy of Pediatrics, the Child Welfare League of America, the American Psychological Association, the American Psychiatric Association, the National Association of Social Workers, and the American Academy of Child and Adolescent Psychiatry, confirms that gay parents make good parents. The American Medical Association, the nation's largest and most well respected association of physicians, with a membership of more than 200,000, agrees". Studies purporting to show that LBG parents are flawed have been completely debunked for their pseudo-scientific methodologies.

There is currently no research specifically about trans parents.

1 Comment

VietNam: First pride parade; gay marriage proposed

8/6/2012

0 Comments

VietNam's justice minister recently proposed legalizing same sex marriage, which would make it the first Asian country to extend marriage rights to queers. Vietnam's first Pride Parade, with about 100 people, happened without incident, though the parade organizers did not try to get official permission for the event.

0 Comments

Huge changes to BC family law to come into force next spring

6/20/2012

2 Comments

The law governing rights and responsibilities of BC couples will be changed dramatically. Shirley Bond announced today that the Family Law Act, which has been passed by the Legislature but had not been 'proclaimed' (come into force) will be effective March 2013.

Would you share your property 50/50 if you broke up?
The Family Law Act will transform the law applying to couples and families in BC. One of the biggest changes is that common law couples (those who have lived together for more than two years, but are not married) will now have the same property rights that married people have. If they separate, each person will be entitled to 50% of the family property - something that till now has not been the case. In addition, each person will be responsible for 50% of the family debt - even credit card debts in the name of only one of them!

The only way for queer couples NOT to be liable to divide their family property if they break up will be to have a cohabitation, or marriage agreement. This is the opt-out choice if you don't like the property regime under the Family Law Act. I have always recommended cohabitation agreements: it is the way for partners to decide what is right for them, rather than relying on the default provisions of the law. While many people find it 'unromantic' to talk about such things at the beginning of a relationship, it is guaranteed to be much harder to do if the relationship ends! (There is an Out/Law guide for people thinking about a cohabitation agreement: "Living Together - Some Questions to Consider")

Good news for same sex parents who conceive with known donors
A positive development for same sex parents is that sperm or egg donors will have no legal rights or responsibilities with respect to the child. This is hugely important for children conceived with assisted reproduction, and their parents. It removes any possibility that a sperm donor might change his mind and sue for custody or access.

It will continue to be necessary for the non-biological parent to adopt the child her or his partner is biologically related to. Though both same sex parents can be named on a child's birth certificate, that is only 'evidence' but not 'proof' of a child's parentage.

In a separation, the only consideration in deciding about the future ofa child will be the best interests of the child. It remains to be seen how that will be interpreted. And there are new mechanisms to enforce agreements or orders about when each parent spends time with a child.

Other changes
The Family Law Act has a new emphasis on ways to resolve family issues without going to court, including mediation, parenting coordination, or arbitration. This is a welcome development since court always increases bitterness between the parties, which is especially harmful if there are children.

There are also new provisions to address violence in the home.

What about you?
Changes in the law WILL apply to relationships already begun. So, if you are in a relationship of more than two years, the law that applies if you break up will be different than it was when you entered the relationship. Be proactive: make your own decisions about what you want the financial aspects of your relationship to be, both while you are together, and if you separate. Otherwise you will find yourself in a situation you didn't plan for and don't want, with a judge making decisions instead of you.

2 Comments

<<Previous

Finally - Canadian divorce available to non-resident queers

Married to an American? They can take you home now...

Happy Day in the U.S.of A!!

Have a Partner? READ THIS! The law is changing...NOW

A new one on me - marriage unnecessary because queers can't get pregnant accidentally...

Civil unions are "marriages" for Canadian law

Canada is suspicious of spouses sponsoring their partners

Every single study says LGB's are good parents

VietNam: First pride parade; gay marriage proposed

Huge changes to BC family law to come into force next spring

Archives

Categories