Script 163 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses the law as it applies to gay and lesbian relationships.

The law relating to gay and lesbian relationships has changed considerably
Changes in both federal and provincial laws now give people in same-sex relationships exactly the same status as people in opposite-sex relationships. People in same-sex relationships in British Columbia have all of the same rights and responsibilities that people have in opposite-sex relationships. 

What are the changes to federal laws?

1. Same-sex couples can now marry
The federal Civil Marriage Act has been changed to allow gay and lesbian couples to marry anywhere in Canada.

2. Married same-sex spouses can now divorce
The Civil Marriage Act also changed the federal Divorce Act to include same-sex couples within its definition of “spouse,” and the Divorce Act now applies to all married couples. This means that child support and spousal support, plus orders about the care and control of children, are available under both the federal Divorce Act and the provincial Family Relations Act – discussed later in this script – for same-sex spouses that are or were married to each other.

Note than only married couples need to divorce when their relationships end. If you live in a common-law relationship, you don’t have to get a divorce to end your legal relationship.

3. What about getting federal benefits?
The Modernization of Benefits and Obligations Act changed 68 federal laws, including the Income Tax Act, the Canada Pension Plan and Old Age Security Act. The changes were designed to ensure that:

• Same-sex married spouses have the same benefits and obligations as opposite-sex married spouses.
• Same-sex common-law spouses have the same benefits and obligations as opposite-sex common-law spouses. 
• Same-sex spouses and partners have the same access as other Canadian couples to social benefits programs they contribute to.

Federal laws use the term “common-law partner” to describe common-law spouses, and generally require that you must have lived together in a marriage-like relationship for at least one year to qualify. Only couples that are married are considered “spouses” under these federal laws.

What are the changes to BC’s provincial laws?
Under the laws of BC, “spouse” includes people who are married or were married to each other, and people in common-law relationships, whether the relationships are between people of the same or opposite sexes. Most of BC’s laws recognize unmarried couples as “spouses” if they have lived together in a marriage-like relationship for at least two years. But some provincial laws, such as the law about social assistance, have different time requirements.  

Can people in same-sex relationships get spousal support?
Married spouses can apply for spousal support under both the Divorce Act and the Family Relations Act. Common-law spouses can only apply for spousal support under the Family Relations Act, and the spouse seeking support must apply within one year of the end of the relationship.

Can people in same-sex relationships get child support?
Married spouses can apply for child support under both the Divorce Act and the Family Relations Act. Common-law spouses and unmarried partners can only apply for child support under the Family Relations Act.

Married spouses and common-law spouses can also apply for child support for step-children. Under the Divorce Act, there must have been a parent-like relationship between the spouse and the step-child before the spouse will be required to pay child support. Under the Family Relations Act, the spouse must have contributed to the financial needs of the step-child for at least one year, and the application for child support must be brought within one year of the spouse’s last contribution to the child’s needs.

What about custody and access of children?
People who qualify as “parents” under the Family Relations Act may apply for custody, guardianship and access, regardless of whether they are in a same- or opposite-sex relationship.

Can a gay or lesbian couple adopt?
In 1996, BC’s Adoption Act was changed to allow any two eligible adults, including two adults of the same sex, to jointly apply to adopt a child, whether they are married or unmarried. So any two people who meet the Act’s eligibility requirements can adopt a child.

For more information on adoption, refer to script 145 on “Adoption” and script 146 on “Adoption Registries”.

Can people in same-sex relationships share in family property?
The rights that people in same-sex relationships have with respect to family property are exactly the same as the rights that people in opposite-sex relationships have.

In a divorce, people who are married can apply to divide their assets under the Family Relations Act. Under that law, married spouses are presumed to have an equal interest in any asset which is normally used for a family purpose, regardless of who owns the asset or when the asset was acquired.

On the other hand, people who aren’t married only have an automatic interest in property that they own together. So, generally, you can only claim an interest in property owned solely by your partner under the law of trusts. This is a complicated area of the law and you really should get the advice of a lawyer, but generally you have to show a contribution which can be financial or otherwise.

What about getting pension benefits?
BC pension laws have also changed. Today, gays and lesbians have the same rights to spousal pension benefits as opposite-sex married spouses or common-law partners. You can name your same-sex spouse or partner as the beneficiary of your pension. 

Where can you get more information?
Refer to the other Dial-A-Law scripts in the Family Law series, in particular, scripts 147, 148 and 150 on common-law relationships.

[updated December 2010]

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