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Queer Family Law in Alberta

July 12, 2019
Queer Family Law in Alberta

What laws govern queer relationships? How does a queer prenup work? Are polyamorous families legally recognized?

The law governing queer family relationships has evolved dramatically in recent years, and heteronomative approaches have been challenged on many fronts.

To help you navigate a changing legal system, we’ve created this guide to queer family law, with a practical orientation.

1. Queer Family Law in Alberta

Queer relationships, by definition, challenge the antiquated heteronormative perceptions of relationships and the characterization of “family”. Queer partners and families have historically been at the forefront of challenging discriminatory and reductive legislation and case law. These challenges have led to major court decisions that have changed the face of family law, like:

  • Egan v Canada, which challenged the definition of “spouse” in the Old Age Security Act;

  • M. v H., which stated that the deprivation of spousal support in a former same-sex relationship violated the Canadian Charter of Rights and Freedoms; and

  • Reference re Same-Sex Marriage, which ultimately determined the right to marry was a constitutionally enshrined right for all, regardless of sexual orientation.

These cases show how far the law has changed in the last two decades. However, we also know how much change still needs to occur. That is to say, the heteronormative way in which family law is done is not always sensitive to the needs of queer and non-heteronormative families.

2. Cohabitation, Prenuptial and Marriage Agreements

Cohabitation can give rise to legal rights. In Alberta, legal rights arise once you have lived in a marriage-like relationship for a period of 3 years (or less if there are children between you), at which point you areconsidered Adult Interdependent Partners. Cohabitation Agreements work to provide certainty in your rights in the event of a breakdown of the relationship.

Without an agreement, the Court will rely on legal principles to determine an equitable division of assets and any claims for support from the other partner. Currently, there is no legislated right to property division for unmarried partners in Alberta, requiring applications to be made under the common law principles of unjust enrichment, constructive trust, or joint family venture. However, as of January 1, 2020, this will change in Alberta with the introduction of the Family Property Act. Under this legislation, family property division applies to both married and unmarried spouses.

Pre-nuptial Agreements are similar to Cohabitation Agreements, but are usually done in contemplation of an upcoming marriage. These Agreements set a mutual understanding, based on information that is currently available to you, of how you will divide property and each party’s right to support in the event of a breakdown of the relationship. The certainty that a pre-nuptial agreement brings, especially with respect to property, can save you thousands in legal fees in the event that you do separate from your spouse.

Marriage Agreements, or Post-nuptial Agreements, is identical to a Pre-Nuptial Agreement except for the fact that it is entered into after the couple is married.

Agreements, although most often focused on property, are extremely beneficial where there are step-children (setting out the step-parents’ legal obligations) and where one person has more than one spouse. They allow you and your partner to set the legal framework for any and all family legal issues that may arise in the event of a separation.

3. Separation and Divorce

If you meet the definition of an adult interdependent partner, the breakdown of your relationship will give rise to legal issues that must be resolved. All issues can be resolved outside of a courtroom through negotiation, mediation, or settlement. However, if you are legally married, only the Court of Queen’s Bench of Alberta can grant you a divorce (i.e. you must get a Divorce Judgment for the divorce to be legally granted).

The first fact to determine is how long you and/or your partner have been ordinarily resident in Alberta. A division of family property for married spouses requires at least one spouse to be ordinarily resident in Alberta for a period of not less than one year. If you are not sure if you have met this requirement, speak with one of our experienced family lawyers.

There are four principle legal issues that are addressed in a divorce or separation:

  • Parenting,
  • Child Support,
  • Spousal Support, and
  • Property Division.

4. Parenting

Whether you are a biological parent, guardian, adopted legal parent, a parent through surrogacy, or step-parent, you will have legal rights and obligations when it comes to the children. The Family Law Act explains what rights arise from what legal relationships. When it comes to guardianship (legal decision making) and parenting (time spent with a child), the overriding legal test is best interests of the child. This means that parenting and access decisions will be driven by the interests of the child, not the preferences or convenience of the parents. Queer and gender non-conforming children have become integral to how this legal test is being interpreted. In situations where one parent is causing emotional or psychological harm to a child as a result of the child’s sexual orientation or gender identity, that parent may lose their parenting rights with that child. The Court’s paramount focus is on the child.

5. Child Support

If you have a legal obligation to provide financial support to a child through the Divorce Act or the Family Law Act, the Court will ensure that you provide this support. Child support is the right of the child and is payable regardless of your relationship with the child at least until the child turns 18 or is no longer deemed a child of the relationship.

For step-parents, child support may be payable in the event the legal parents are unable to sufficiently provide for the child. However, there are certain requirements that must be met, including the other parent proving that you have stood in the place of a parent for the child.

Example: Child Support

Base child support for parties earning $120,000 and $28,000 in Alberta, who share parenting of one child:

Child Support

Child support, if payable, is calculated based on amounts set out in the Alberta Child Support Guidelines (adult interdependent partners) and the Federal Child Support Guidelines (married spouses). The amount is based off of the payor parent’s income and the parenting arrangement that is in place for the child. We have developed a child support calculator you can use to estimate child support. It also automatically generates some graphs and charts to help you visualize how child support payments could affect your cash flow.

6. Spousal Support

Spousal support is money paid by one party to another. It is not, however, automatic. Spousal support requires that the spouse claiming support is entitled to same, and what that entitlement looks like. This is one of the most complex areas of family law as it takes into consideration a multitude of factors, such as roles in the relationship, earning potential, current earning capacity, length of the relationship, whether there are children of the relationship, how much property is to be divided, etc.

Example: Spousal Support

Example spousal support ranges for parties earning $120,000 and $28,000 who share parenting of one child:

Low
Mid
High

The Spousal Support Advisory Guidelines (“SSAGs”) are a reference tool for determining what spousal support may look like, but they are not mandatory nor legislated. There is a range of support that is produced through the SSAGs, and the choice of where on the range spousal support will be paid is determined through considering the factors described above. We have also developed a spousal support calculator that you can use to estimate spousal support. However, you should speak with a family lawyer to discuss the support that may be payable in your situation.

7. Property Division

If you are married, you will be subject to a division of your family property. There is a presumption of an equal division of your family property (including assets and debts). However, there are a number of exceptions, including property owned prior to cohabitation and/or marriage, property received as a gift or inheritance, or property acquired through insurance settlements.

If you are not married, until January 1, 2020, legal rights for property division arise only through the common law. However, as of January 1, 2020, if you meet the definition of an adult interdependent partner and the residency requirement, your rights and entitlement to family property will be determined pursuant to the new Family Property Act.

If you have a Cohabitation Agreement, Pre-nuptial Agreement, or Marriage Agreement, the division of your family property will be governed by that Agreement to the greatest extent possible. If you do not have an Agreement, you will be subject to the provisions of the Matrimonial Property Act or the common law. In some cases, family property division is straightforward, while in other cases it can become very complex. This is particularly so when there are family companies or foreign-owned property.

Example: Property Division

Here's a simplified property division table:

Asset Anne Sue
House $500k $0
Car $0 $20k
Stocks $0 $80k
Money $0 $400k
Total $500k $500k

8. Resolving a Separation or Divorce

Our team of queer and allied family lawyers can help you to determine the best course of action to take. In most cases, we strongly encourage negotiation and mediation to reach a settlement that is then incorporated into a formal Separation Agreement. However, there are times where court intervention is necessary and our team has experienced litigators ready to seek an appropriate Order from the Court.

9. Polyamorous Families

There is nothing in the legislation that prevents one person from having more than one legal partner. In Alberta, un-married partners receive the title of adult interdependent partner (after the legislated requirements are all met, of course). What this means is that you can have a spouse to whom you are married and also have an adult interdependent partner to whom you are not married (without limitation on the number).

This can create an unusual and difficult situation, which will become even more complicated when family property law applied to adult interdependent partners. The new Family Property Act, for example, stipulates a presumption of equal division of property between separating spouses/adult interdependent partners. But if you have more than one spouse/adult interdependent partner, what does “equal” look like? Are your two (or more) partners also partners of each other? Should your property be at risk because your partner separates from one of their other partners who is not your partner? There is a lot of uncertainty, particularly if your lawyer does not understand or recognize the uniqueness of polyamorous (“poly”) families in Canadian law and how the courts across the country are resolving these issues.

The legislation has not defined procedures for poly families, which leaves it to lawyers and judges to determine the most appropriate way for legal disputes to be resolved. Many of the issues can be prevented through the preparation of a Cohabitation Agreement that all spouses sign at the commencement of the relationship (or that new spouses sign upon joining an existing poly family). If you are already years into your relationship, you will benefit from discussing options available to you and your spouse(s) with a family lawyer who recognizes the unique space in which poly families exist within our legal system.

Our team of experienced family lawyers can help you and your spouse(s) prepare an Agreement that sets out reasonable expectations of all parties within the relationship and/or can advocate on your behalf for a proper resolution in the event of a breakdown of a poly relationship. In addition, if you and your spouse(s) are having difficulty in resolving your disputes between you, our team of Certified Mediators can help you in navigating this unique and complex area to reach a resolution that is agreeable to all parties.

10. Civil Marriage Act - Non Residents of Canada

Since 2005, Canada has granted and recognized same-sex marriages of both domestic and foreign nationals. This led to an influx of foreign couples coming to Canada to get married, which continues today. However, this also created procedural and legal concerns for foreign couples who decide to separate – if you reside in a jurisdiction that does not recognize same-sex marriage, you cannot get a divorce in that jurisdiction. But if you decide to not take the formal steps of divorce, your marriage is still recognized in Canada, causing further issues later on should you decide to get remarried. Thankfully, the Civil Marriage Act provides a remedy.

Unlike divorces granted through the Divorce Act, the Civil Marriage Act permits the Court to grant a divorce to spouses who are not ordinarily resident in Canada. The requirements to receive this divorce are:

  1. the spouses have lived separate and apart for at least one year prior to the application,
  2. neither spouse resides in Canada, and
  3. each spouse resides in a jurisdiction for at least one year prior to the application that does not recognize the validity of the marriage.

If you and your spouse reside outside of Canada and cannot receive a divorce in your jurisdiction, contact Davidson Fraese Family Lawyers for a free, 15 minute phone consultation so that we can discuss whether an application pursuant to the Civil Marriage Act will work for you.

11. Adoptions in Alberta

When a child is adopted, their adoptive parents become their only parents. The former parent(s) no longer has/have any of the rights and responsibilities of parenthood. Davidson Fraese assists with two basic types of adoption: private adoptions, when a child is adopted by a new family, and step-parent adoptions, when a step-parent adopts the child of their spouse.

Step-parent adoptions are common and are relatively straightforward when the permission of the birth parent is obtainable. A step-parent adoption can become more complex when the non-custodial birth parent cannot be found, or does not want to consent to the adoption. In a step-parent adoption, the custodial parent retains all of their legal rights and responsibilities as a parent.

Likewise, third party adoptions are relatively simple when all parties are consenting. In British Columbia, the birth parents can request a Home Study or one may be ordered by the Judge if it is deemed necessary.

12. Surrogacy in Alberta

In surrogacy, a gestational carrier will carry a fetus in pregnancy and give birth to a child for other people who will legally be the child’s parents. It sounds simple enough. However, surrogacy in Canada is very different from the United States and how it is depicted in television and movies. A piece of federal legislation called the Assisted Human Reproduction Act sets requirements for surrogacy in Canada:

  1. the gestational carrier must be at least 21 years old;
  2. it is illegal to pay a gestational carrier to be a gestational carrier; and
  3. it is legal for the intended parents to reimburse the gestational carrier for expenses incurred related to the pregnancy.

In the Family Law Act, the Alberta government established a procedure for intended parents to become the legal parents of a child. This requires a court application made to declare the gestational carrier as not being a parent of the child and to have the parent(s) who provided reproductive material to be declared the parent(s) of the child. However, for queer families, the legislation is not comprehensive. It states that only the male person and the female person who provided reproductive material may make the application. There is no recognition of non-gendered individuals. This then creates a second step to the process: the spouse or partner of the legal parent following the application must then adopt the child as a step-parent adoption.

It is recommended that in order to make this process as simple as possible, the gestational carrier and the intended parent(s) should enter into a Surrogacy Agreement setting out the rights, obligations, and expectations of all parties. Surrogacy Agreements can be complex as a result of the government’s limited regulations around surrogacy in Canada. If you are looking to put an Agreement together, reach out to our team of surrogacy lawyers in Calgary who can help you prepare an Agreement and explain all of your rights and obligations.

13. Queer Family Lawyers

We at Davidson Fraese Family Lawyers recognize that in order to effectively represent queer clients, we have to ensure our strategies and behaviours are not based on presuppositions of heteronormativity. All of our lawyers are undergoing Queer Competency Training through QMUNITY, British Columbia’s queer, trans & two-spirit resource centre. Our philosophy is that all of our clients, regardless of race, gender, gender identity, gender expression, sexual orientation, or any other characteristic should receive the best representation possible.

Our team of queer and allied family lawyers are here to help you navigate all legal aspects of your relationship, including Cohabitation Agreements, separation/divorce, adoption, and surrogacy. Call our Calgary family law office today to set up a free, 15 minute consultation.


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