Sherman Law LLP

Family Law/ Same-Sex Family Law Issues


Our team of Kitchener family law lawyers have been assisting clients from the LGBTQ communities with all of their family law needs for many years, and we are proud to be the law firm of choice for the Waterloo Region and Wellington County communities. We offer a safe zone, welcoming, and non-judgmental environment for you to feel comfortable discussing your concerns, and we have the experience and knowledge in same-sex legal issues that exceeds other law firms in the area. Whether you require advice with regard to your separation, or require estate planning services that may involve small business and corporate law, our experienced lawyers can help you reach all of your goals. Gay and lesbian couples can legally enter into marriage contracts and separation agreements in the same manner as heterosexual couples. At Sherman Law LLP, we are experienced Kitchener family law lawyers who have represented many same-sex couples and understand the unique challenges that can arise and how to support them to reach our clients’ goals.

Smiling lesbian couple embracing

Gay and lesbian couples have unique rights and responsibilities upon separation and divorce that require a knowledgeable and experienced lawyer that understands the law.

If you are separating from a same-sex relationship, you will face a unique set of challenges that require knowledgeable and experienced representation. Our team of highly skilled Kitchener family law lawyers can assist you with all of your legal needs with regard to the breakdown of a relationship, or those seeking to obtain a non-resident divorce application. We would be pleased to assist you in any Kitchener same-sex family law matter including matters relating to divorce applications, alternative dispute resolution, marriage contracts and separation agreements, common-law separation, child custody and access, child support, spousal support, property division, and issues related to parenting and adoptions.

Same-sex couples can marry.

Canada became the first country outside Europe and the fourth country in the world to legalize same-sex marriage nationwide after the enactment of The Civil Marriages Act on July 20, 2005 to extend to same-sex couples the legal capacity to marry in civil ceremonies. This was the last step in a long fought process to enable same-sex couples the right to marry in Canada in a Supreme Court of Canada decision, commonly referred to as the Halpern decision. Gay and lesbian couples now have full equality under the law including the right to marry. However, many gay and lesbian couples still face unique legal challenges when entering into a relationship, getting married, deciding to parent, and upon separation, that require knowledgeable and experienced legal representation.

Same-sex spouses can also divorce.

Same-sex couples in Canada also have the right to divorce. However, the law can become complicated for same-sex couples who married in Canada, but are not residents of a Canadian province.

The Divorce Act defines “spouse” under section 2(1) as “either of two persons who are married to each other”. Accordingly, all the rights and obligations that flow from both the Family Law Act and the Divorce Act are equally applicable to parties of a same-sex marriage and a heterosexual marriage.

The Divorce Act states that in order to obtain a Canadian divorce, at least one of the spouses has to have been a resident in Canada for at least one year, a requirement that is often referred to as “the residency requirement”. The residency requirements have created problems for same-sex couples who came to Canada to marry because their own place of residence did not allow for gays and lesbians to marry. These spouses can find themselves in marriage limbo if the marriage falls apart unless their jurisdiction recognizes same-sex marriage and divorce.

The Civil Marriage of Non-Residents Act has now established a divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where divorce cannot be granted because that state does not recognize the validity of their marriage. Same-sex couples residing in jurisdictions where same-sex marriage is not recognized and who were married in Canada now have the right to divorce in Canada. However, the parties must have been separated for at least twelve months.

Same-sex parenting and assisted reproduction.

Same-sex parents in Ontario and those who have used assisted reproduction to conceive no longer have to adopt their own children. The All Families Are Equal Act ensures that couples such as those who use a sperm or egg donor or a surrogate are legally recognized as parents, updating parentage laws for the first time since 1978. Under the old rules, same-sex parents often had to go to court in order to obtain that recognition

Estate planning after you separate.

Same-sex couples in a common-law relationship and those same-sex spouses who are spouses will face unique challenges and concerns when revising Wills and Powers of Attorney after separation. We offer comprehensive estate planning for our gay and lesbian clients based on our years of experience helping others in similar situations. If you are in the process of separating from a same-sex relationship, you will need to revise your Wills and Powers of Attorney, as separation and divorce will likely make your current Will invalid. We invite you to contact a lawyer from our Kitchener law firm for assistance in ensuring that your legacy is property protected based on your wishes and goals.

Do you want to learn more about same-sex family law issues?

For over 40 years, clients have trusted in our ability to explain their rights and obligations in a separation or a divorce. We are confident that you will appreciate our professional and personalized service. We invite you to browse our website and read the positive things others have to say about us. To benefit from our knowledge and experience with respect to your separation or divorce, please contact 519-884-0034 or send us an email. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants, and financial advisors. We serve clients in Kitchener, Waterloo, Cambridge, Guelph and surrounding areas.

Connect with a lawyer in our firm with expertise in this area

Aubrey J.  Sherman

Aubrey J.  Sherman