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This chapter will provide a brief introduction to how family law and divorce law impact on same-sex relationships and discuss the current state of the law on marriage and divorce. This chapter will also touch on some of the legal issues affecting the transgendered, transsexual and bisexual communities. I. Introduction For the last 30 years or so, there has been a steady erosion of the discrimination between opposite- and same-sex couples existing as a result of government legislation. While gays and lesbians may face homophobia and intolerance as a matter of course in day-to-day life, at least legislated discrimination has been on the wane. From the Little Sisters censorship decision to Egan v. Canada on spousal benefits, the courts of Canada have proven increasingly willing to extend the protection of the Charter of Rights and Freedoms to overturn discriminatory legislation. The realm of family law has proven no exception. To quote barbara findlay, a tireless advocate of queer rights, from her address to the Canadian Bar Association British Columbia's Vancouver family law subsection several years ago: "Gays and lesbians in British Columbia now have exactly the same rights and obligations towards one another as straight people do. Exactly the same. Full stop." Ms. findlay is exactly correct: as far as the provincial statutes of British Columbia are concerned, and indeed the vast majority of federal statutes as well, there is equality. The Court of Appeal for British Columbia was among the first of Canada's appellate courts to acknowledge that restricting the right to marry to straight couples alone was an egregious breach of the rights of gays and lesbians to equality, and our provincial Adoption Act is one of the few in Canada which permit adoption by same-sex couples. Same-sex couples are equally entitled to pursue matters of custody, even against former heterosexual partners, and to pursue claims for spousal support. Sexual orientation plays no part in the division of family assets, nor is it a factor in determining matters of access or child support. How does family law intersect with gay and lesbian relationships? In every way. There in no relief of which straight couples can avail themselves that same-sex couples cannot. A. Same-Sex Marriage Watch The federal Civil Marriage Act, also called the Marriage for Civil Purposes Act, is now law in Canada and in force in all of Canada's provinces and territories. The act defines marriage as "the union of two persons," overriding the old common law definition which restricted marriage to straight couples by defining it as "the union of a man and a woman." The bill protects religious freedoms by giving religious officials the right to refuse to perform same-sex marriages if they don't want to. B. Same-Sex Divorce Watch The Civil Marriage Act amended the Divorce Act to change the definition of spouse and, as a result, married same-sex couples may now divorce without the need to challenge the constitutionality of the act, as was curiously necessary in the Ontario case of M.M. v. J.H. and the British Columbia case of J.S. v. C.F. Back to the top of this chapter. II. Issues affecting the Transgendered, Transsexual and Bisexual To be brutally frank, the jury is still out on how family law impacts on the trans community. Right now, the laws have slipped into a comfortable understanding of "the same or opposite genders," but only accommodates people on the spectrum in between with difficulty. While bisexuality is as close to a non-issue in this context as there can be, the transgendered and transsexual may well encounter difficulty dealing with the courts on family matters. This segment offers only a gloss on some of the issues affecting this community. If you have a family law problem and your orientation or self-identity becomes an issue, contact a lawyer known to be sympathetic or activist on the issue, such as barbara findlay or another lawyer she can refer you to. Please note that this segment must be read together with the related chapters of this website for a proper understanding of the basics of the law applicable to the following issues. A. Children Those who have discovered alternate self-identities during their marriages may find their new identities hotly at issue in the event that the living arrangements for the children must decided in court. The problem here is that while shows like Will and Grace, The Birdcage and The L Word have made straightforward homosexuality something commonly understood and empathized with, nothing similar has popularized and explained the experience of the trans community. It can be very difficult for people, including ex-partners, to understand trans issues and this problem is especially acute in courtroom discussions about the care and control of children. The most important issue to deal with concerns the demystification of the person's self-identity and explaining why his or her self-identity has no impact at all on his or her ability to parent, nor on the expected outcomes for the children. On the bright side, the single reported case the author was able to find in researching transgendered and transsexual family law issues dealt fairly positively with the subject. (This research is a few years old.) In Forrester v. Saliba, a 2000 decision of the Ontario Court of Justice, the father of the child had begun the process of transgendering to female following the pronouncement of a consent order which provided that the parents would have joint custody of the child. The mother brought an application to vary the order to obtain sole custody of the child based on the stress and depression that affected the parents since the commencement of the transgendering process. Here are some interesting exerpts from the decision: "I indicated at the beginning of the trial to both parties and their counsel that the [father's] transsexuality, in itself, without further evidence, would not constitute a material change in circumstances [necessary to consider varying a consent order], nor would it be considered a negative factor in a custody determination." "The entire focus of this trial has been upon the consequences of the [father's] transgendering, the mental health issues that have arisen as a result of the [father's] transgendering process, and the [mother's] mental health issues. The evidence discloses that throughout all these problems suffered by the parties, the child Christine has remained happy and healthy and continues to enjoy a positive relationship with both parties. ... It appears from the evidence that Christine is a very well-adjusted, happy, healthy little girl, who in her own way has been able to accept the changes in her father and continues to enjoy a healthy relationship with her father, now a woman psychologically, as a person and a loving and caring human being." The mother's application was dismissed. B. Child Support Trans issues have no impact at all on the determination of child support. If you are a biological parent or qualify as a step-parent, child support will be payable or receivable. End of story. C. Spousal Support The simple fact of financial dependence, which would ordinarily have to be established to support a claim to spousal support, should be sufficient to prove an entitlement to support. If, however, the cause of the dependence or inability to be independent relates to or stems from the trans issue, be prepared to face a tough fight if your former partner won't agree to provide support. The problem will lie in establishing the legitimacy of the financial dependency arising from the trans issue; in other words, the problem will lie in convincing the judge dealing with the matter that the issue you are dealing with isn't one of choice or a voluntary financial dependence. D. Dividing Assets Trans issues have no impact at all on the division of assets, except as might pertain to spousal support since support is often considered in light of the effect that the division of assets has on the objectives of a spousal support order. E. Divorce Thankfully, this is one area which ought to be a no-brainer. The Divorce Act no longer requires spouses to be of opposite genders (whether at the end of their marriage or at the beginning of it) in order to qualify for a divorce order. 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