Legal Empowerment for the LGBTQ Community
June 2008 marked the fifth anniversary of same-sex marriage in Ontario, and 2006 census data shows that more than 7469 Canadian same-sex couples have been married since 2003. Think of all the individuals, couples, families, friends, congregations and communities in Canada and around the world who have been affected by this monumental change!
After millenia of legal and religious repudiation, criminalization, medicalization, discrimination and needless rejection and stigma, the historic importance of same-sex marriage to the life interests of our LGBTQ community cannot be underestimated. These developments continue to influence cultural and legal practice internationally.
In addition to Canada, more and more international jurisdictions now solemnize or recognize same-sex marriages, including the Netherlands, Belgium, Spain, South Africa, Israel and Norway, as well as the states of California, New York, and Massachusetts in the United States.
Other jurisdictions such as the United Kingdom, some E.U. members, and the U.S. states of Vermont and New Hampshire now solemnize and recognize 'civil union' status, with differing rights and responsibilities. As time passes, more jurisdictions are likely to offer civil union registrations, if not same-sex marriages entirely. (For updates on the status of same-sex marriage internationally, please check out www.freedomtomarry.org.)
These legal developments symbolize historically unprecedented and increasingly widespread social and legal recognition of the basic equality and dignity of the lives, loves, families and relationships of gay men and lesbians, regardless of our marital status, or whether we choose to marry.
As members of an LGBTQ community which is new to full recognition in law and social respect, many of us may not be aware that it is essential to review and revise one's will and powers of attorney with every major life change.
If you had a will drafted prior to getting married, and your previous will made no mention of your intent to marry, the will may have automatically become legally invalid the moment you tied the knot! The reason for this is that marriage in Ontario and many other jurisdictions confers automatic legal property rights that may supersede any previously drafted will and may affect any power of attorney document.
There are automatic rights and responsibilities associated with marriage that differ from common-law status, particularly in regard to property claims on the dissolution of the relationship, as well as rights and responsibilities during the relationship.
Canadian federal law now requires same-sex common-law spouses to file joint tax returns after one year of cohabitation, although common-law status in Ontario is not recognized generally for the purposes of property claims on separation until couples have cohabited for three years or more.
Because the qualifications for common-law status differ from province to province, and from the rights and responsibilities of marriage generally, it's especially important for common-law spouses to obtain qualified legal advice and documentation to empower their common-law relationships and interests, particularly if their assets and family interests are complex.
Cohabitation and pre-nuptial agreements are popular, but are ultimately legally enforceable only to the extent that they are recognized in the courts as fair to both parties. A document with legally unenforceable terms or deemed unfair to the less wealthy partner may be dismissed completely by the court in the event of separation.
If you have recently begun a common-law or married relationship, separated or divorced, had children, experienced the passing of close friends and family or proposed executors or beneficiaries, or if you have experienced other major changes in your circumstances, such as inheriting, purchasing or disposing of major property assets, it's advisable to review and revise your will and powers of attorney periodically to ensure that these continue to reflect your interests and wishes.
Wills and estates law can be extremely complex, and among the most emotionally difficult legal areas in the event of illness or death, particularly if one's affairs are not well planned through advance consultation with qualified legal counsel and trusted family members and friends.
Whether one's marital status is single, married, separated, divorced, widowed, or common-law, it is essential to protect one's interests and loved ones by obtaining qualified legal advice and updated powers of attorney for property and personal care (to empower those you designate to make property and health care decisions and to act on your behalf in the event of your incapacitation), as well as a current and legally valid will, to direct the distribution of one's estate after death.
[The foregoing is intended as general information only, and should not be relied upon as legal advice. For specific legal questions or concerns, please consult a qualified legal practitioner.]
Joanne Cohen
Law Clerk and Community Advocate
Bruce E. Walker Law Office
416-961-7451
jcohen@bwalkerlaw.com
www.bwalkerlaw.com
