Under British Columbia’s Family Law Act (“FLA”) (and the Divorce Act), Queer couples enjoy the same legal rights as heterosexual couples. This means that the processes for separation, including obtaining orders or agreements on parenting arrangements, child support, spousal support, property division, and divorce, are the same for all families in British Columbia. 

Who does the FLA apply to?

If you meet one of the following criteria, the FLA applies to you:

1. You are married to another person.
2. You have lived in a marriage-like relationship with another person for at least two years.
3. You share a child with another person.

Who is considered to be separated?

In British Columbia, there is no such thing as a legal separation. When two people who are either married or have lived together for two or more years stop living in a marriage-like relationship, they are considered to be separated. A couple does not need to agree to separate in order to be separated; it is enough for one person to communicate this intention with the other person. 

It is not uncommon for two people to continue living together while they are separated for a myriad of reasons- a reality for many families in British Columbia. In these situations, the court will look at several factors to determine if and when the parties separated including but not limited to:

1. Did they file taxes together?
2. Are they still intimate and/or do they still sleep in the same bed?
3. Do they take vacations and/or attend events together?
4. Preparing and eating meals together?
5. Are they planning a future together?

Out-of-court dispute resolution

There are many options for couples to settle their family law issues without going to court. This includes separation agreements, mediation, and arbitration. Orders (made at an arbitration) and agreements made out of court are legally binding just like court orders. 

Separation agreements

Separation agreements are written agreements that are contracts between two spouses that have separated. They can deal with almost all issues except for divorce. This can be a great option for couples who have separated but are able and willing to work together to settle their issues. A lawyer can assist you to draft the agreement, and it is recommended that you speak to a lawyer before coming to an agreement. It is important to get independent legal advice before signing the agreement, even if you agree with everything that you have written. 

Mediation

Mediation is an out-of-court option where spouses will meet with a mediator to settle their family law issues. The mediators are usually lawyers who act as a neutral third party which can reduce some of the conflict during the process. There is also the option of doing shuttle mediation where the spouses are in separate rooms and the mediator will speak with each spouse individually and pass the message between them. 

Arbitration

Arbitration is a formal method of dispute resolution where a neutral third party makes binding decisions. It is more private and quick of a process than court. One of the disadvantages of arbitration is that it can be quite a costly process; however, depending on the nature of your case, it may be cheaper than going to court.

Parenting arrangements

Many queer couples choose to have children during their relationship. LGBTQ+ families may encounter unique legal challenges, such as issues related to parental rights for non-biological parents, recognition of non-traditional family structures, and the legal complexities of assisted reproduction and surrogacy. Despite this, queer families can obtain many of the same types of orders through the FLA including:

1. Parenting time- this determines the parenting schedule between the parents.
2. Parental responsibilities- this determines who makes the major decisions relating to the child(ren).
3. Conditions on parenting time- this sets out certain requirements that parents need to follow to ensure the welfare of the child(ren).

When the court makes orders about parenting arrangements, the only consideration is the best interests of the children. .

Child support

In British Columbia, child support is considered to be a right of the child until they turn 19, or until they are no longer considered to be a dependent. Therefore, it is not something that one or both parents can opt out of if the child is legally entitled to it. The purpose of child support is to ensure that the parents have the financial resources to care for their children following a separation. 

In addition to basic child support, parents may also be entitled to special and extraordinary expenses that are not covered by the child support amount. This includes expenses such as:

1. Extracurricular activities such as sports, arts, and music classes.
2. Medical expenses and prescriptions.
3. Education costs and tutoring.
4. Child care expenses.

Spousal Support

Spousal support is money that is given from one spouse to the other due to the relationship breakdown. Some of the considerations for entitlement to spousal support include:

1. The length of the relationship.
2. The income of the parties.
3. The age of the parties.
4. Any non-monetary contributions made by one party.

Property division

During their relationship, families may acquire both assets and liabilities that need to be divided following the relationship. These include but are not limited to:

1. Real property (homes or condos).
2. Bank accounts.
3. RRSPs and RESPs.
4. Debts including mortgages.
5. Businesses.
6. Cars.
7. Expensive jewelry or antiques.

Generally speaking, assets and debts acquired during the relationship are to be divided 50/50. However, in some cases, courts may order an unequal division of property or they may deem some property as excluded from property division. It is important that you speak to a lawyer regarding property division and the implication of exclusions and/or gifts.

Pet custody

Many families have beloved family pets that they consider to be a part of the family. In January 2024, the FLA was amended to give families the ability to obtain court orders or make agreements about the custody of pets. This includes the possibility of having a shared custody of pets or to have one spouse have full custody of the pet. The amendments set out factors that the court considers when making decisions about pet custody that closely mirror the ‘best interests of the child factors’, and these can be found at section 97 of the FLA. To find more information on pet custody, check out our blog post here.

Divorce

When two parties are legally married and want to separate, they need to obtain a divorce order which is covered under our federal statute, the Divorce Act (R.S.C., 1985. c.3 (2nd Supp)). To receive a divorce order, you must obtained it through the British Columbia Supreme Court. The other person does not need to agree to the divorce and you can get divorced as long as the following requirements are met:

1. You have been separated for at least one year.
2. You or your spouse have lived in British Columbia for at least a year prior to the divorce.
3. If you have a child, adequate arrangements for child support are made

Safety in the family law system

Despite these legal equalities, LGBTQ+ individuals often face challenges in accessing family law services due to concerns about finding supportive and non-judgmental environments. Discrimination and prejudice still exist in many areas of society, and the legal field is no exception. While courts are increasingly aware of the need for safe and inclusive spaces, many LGBTQ+ individuals still hesitate to seek legal support, fearing judgment or misunderstanding from legal professionals. This fear can be compounded by previous negative experiences or a general lack of knowledge about LGBTQ+ issues within the legal system. These additional layers of complexity make it even more crucial for LGBTQ+ individuals to find legal support that is knowledgeable and sensitive to their specific needs.

At Kitsilano Family Law, we are committed to providing a Queer-friendly space where individuals can comfortably explore their rights, responsibilities, and options under family law. Our team is trained to understand and address the unique challenges faced by LGBTQ+ individuals, ensuring that every client feels respected and supported throughout the legal process. We believe that everyone deserves access to justice and legal support that affirms their identity and experiences.

Whether you are seeking advice on separation, cohabitation agreements, or any other family law matter, we are here to help you navigate the legal landscape with confidence and clarity. For a consultation, please contact us at contact@kitsfamilylaw.com.

Blog by: Amber Cheema and Isa Nafissi

Edited by: Jennifer Buckley