Same Sex Couples
Committed to treating you with care, sensitivity and respect
At AGB Lawyers, we want you to feel comfortable and at ease. Our team is comprised of professionals who take the time to get to know you and your situation. We are committed to providing you with clear, compassionate and accurate advice while ensuring your legal rights are protected.
Know your rights – Know how to protect them
In Ontario, the laws pertaining to same-sex couples continue to evolve. Whether you’re living with someone, getting married or divorced, adopting a child from family members, updating your will or preparing a power of attorney for financial or personal care, it’s very important that you understand your rights. Here are some of the areas we can help.
Division of property upon the break-down of a relationship
Whether you are in a heterosexual or same-sex relationship, the laws in Ontario treat you the same way.
If the relationship is common law, there is no automatic right to the division of property, however, if you are married, the Family Law Act gives same-sex couples the same rights as heterosexual couples as it relates to division of assets.
As a result, AGB Lawyers recommends that you explore having a Cohabitation Agreement prepared if you’re in a common-law relationship, and a marriage contract (sometimes referred to as a prenuptial agreement) if you’re married or planning to marry. Use of these agreements can supplement the law to create a property regime between couples with which they are comfortable. Agreements can be made retroactively; meaning they don’t have to be in place at the start of the relationship.
More and more same-sex couples are choosing to adopt. While the process can be lengthy, the laws in Ontario are far less restrictive on same-sex couples than they once were. Starting a family and going through the adoption process should be a joyous time for a couple. AGB Lawyers can help you navigate the adoption process during this exciting time. We know you’re not going to get much sleep once the child comes home, but there’s no reason you shouldn’t sleep well during the process.
Trust Claims/Unjust Enrichment
In Ontario, unmarried couples who reside together do not have an automatic right to division of the family’s assets unlike married spouses. Unmarried couples do, however, have two possible claims for sharing of wealth created during the relationship.
1. Resulting Trusts:
A resulting trust is created when title to a property is in the name of a party that did not provide any value for the property, and that party is then required to return all or part of the property to the true owner. A resulting trust is determined based on the actual intention of the party holding title to the property.
2. Constructive Trusts:
A constructive trust is imposed when there has been unjust enrichment, regardless of the intention of the parties. Unjust enrichment occurs when there has been (1) an enrichment to one party; (2) a corresponding deprivation to the other party; and (3) there is an absence of any legal reason for the enrichment.
Limitation Act Concerns
In Ontario, the Limitations Act of 2002 imposes a general two year limitation period for constructive trust claims. The two-year time frame begins as soon as an applicant discovers a constructive trust claim. A recent Ontario decision, however, found that the limitation of two years can’t reasonably apply to family law cases and instead, imposed a ten year limitation period. The court came to that conclusion in a motion involving a common law partner who claimed a constructive trust over property her spouse owned. The applicant had known about the claim since 2007. When she brought the case to court, the respondent said her claim should have expired several years ago due to the two-year limitation period.
The case is being appealed, and therefore, everyone with a possible constructive trust law claim should be aware that the two year limitation period may still apply. This may affect common-law and married spouses, whether heterosexual or same sex. To protect their rights in the event of separation, more and more couples are putting into place a Cohabitation Agreement, drafted by legal counsel.
A properly executed will can help ensure your wishes are respected. In Ontario, the Succession Law Reform Act governs what happens if you die without a will. Without a will, the legally married spouse of the deceased is entitled only to a preferential share of the estate if the deceased had any children or a claim to a property division under the Family Law Act. Neither option is usually enough to satisfy and exercising your rights in this way is very expensive.
Did you know…the wills of lesbians and gay men tend to be challenged more than those of heterosexuals, especially if the will provides for a greater share of the estate to a gay or lesbian partner as opposed to biological family members…?
A common-law spouse does not have an automatic right to the deceased partner’s estate. In the case of a common-law couple with children, the children will inherit their deceased parent’s estate equally and the common-law spouse is entitled to nothing under the legislation.
To reduce family discord and estate administration expenses and to ensure your wishes are respected, make sure you have a properly executed will and that you make your wishes known to your family. A claim of resulting trust may exist against the estate or a family law act election. Either may offer some relief.
Powers of Attorney for Personal or Financial Care:
Under Ontario law, “partners” for the purpose of making decision while incapable, are defined as two individuals who have lived together in a relationship of primary importance in each other’s life for a minimum of one year. This allows partners to make health care decisions for the other under the Health Care Consent Act.
Still, it’s important not to rely on the law to define the nature of your relationship. AGB Lawyers recommends that you complete a power of attorney for personal care and a continuing power of attorney for property. It’s a simple way to gain the peace of mind of knowing that your wishes will be carried out if you become incapacitated.
Taxation of common-law partners and married spouses
Under the Income Tax Act (Canada), all common-law relationships, either opposite or same-sex, are treated the same, so long as they meet the Canada Revenue Agency’s definition: two persons who live together for at least 12 consecutive months in a conjugal relationship or who are parents of a child and who have not lived separate and apart for at least 90 days due to a breakdown of their relationship. So long as common-law partners meet the definition, they are entitled to tax benefits whether opposite or same-sex. This includes spousal RRSPs, Home Buyer’s Plan, principal residence exemptions, and spousal trusts, among other benefits, deductions, and tax credits.
Married spouses, whether same or opposite sex, are also entitled to the same treatment and benefits.
For more information on taxation of common-law partners and married spouses, please consult your tax advisor/lawyer or the Canada Revenue Agency.
Get legal advice you can trust – and the service you deserve
Whether you are in a same-sex common-law relationship, getting married, dissolving a relationship, adopting a child or need to draft or update a will or powers of attorney, make sure your rights are protected.
Please contact us for a free, no-obligation consultation at 613-232-8832 to learn your rights…all of them.