Same-Sex Divorce for Non-Residents of Canada

The Civil Marriage Act of 2005 changed Canadian law to allow same-sex partners equal access to marriage for civil purposes on the basis that every individual has the right to equality without discrimination.

Since 2005, thousands of same-sex couples have accessed the rights afforded them under the Civil Marriage Act and have married in Canada. Many of these same-sex couples either no longer live in Canada or never did live in Canada. Prior to August 2013, there was a gap in the legislation in Canada that affected same-sex couples who married in Canada but lived outside of Canada. A married couple could only file for divorce if at least one spouse was residing in Canada for at least one continuous year prior to the filing of the divorce. Same sex-couples who were now residing in a jurisdiction that did not recognize same-sex marriages had no ability to become legally divorced.

In August of 2013, the Civil Marriage Act was amended to allow the Courts to grant a divorce where non-resident spouses have been living separate and apart for at least one year prior to making the application, where neither spouse resides in Canada at the time of the application, and where each of the spouses is residing for at least one year immediately prior to the application in a state where divorce cannot be granted because that state does not recognize the validity of the marriage.

The application must be made jointly, with the other spouse's consent or alternatively with a court order declaring the other spouse incapable of making decisions, unreasonably withholding his/her consent, or unable to be found. The application can be made by way of "desk divorce" application in the province where the marriage was performed, meaning that neither spouse is required to be present during the proceedings. Although there are documents to be signed and sworn by one spouse, this can be done before a Notary Public wherever that spouse resides and then filed in the Canadian court.

Although these amendments allow for the actual dissolution of the marriage, the Civil Marriage Act does not give the Court jurisdiction to provide any corollary relief to the divorce. Issues such as parenting matters, the payment of child support or spousal support and the division of property are examples of corollary relief. The Divorce Act and the Matrimonial Property Act, which typically deal with these corollary issues, both continue to require the residence of either spouse for one year immediately preceding the commencement of the proceeding. Corollary relief may be dealt with in the jurisdiction of residence and/or the jurisdiction where the property is located and a lawyer in that jurisdiction should be consulted in order to determine the issues of corollary relief.

Article written by Laurie Stephen