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Queer As Family: The Legal Rights & Responsibilities of Lesbian, Gay, Bisexual, and Transgendered Families in BC (a booklet)
(For those who don't know, BC is a province in Canada)

** Please keep in mind that this information is from 2002. Updates on this information will be in post #4.**

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Introduction

The laws governing lesbian, gay, bisexual and transgendered (LGBT) people and their families have changed dramatically over the last twenty years.

Thirty-five years ago, homosexual sex was a crime, homosexuality was classified as a mental illness, same-sex partners lived as "roomates," and transgendered people had barely emerged into public consciousness.

Today, queers (LGBT's) are protected from discrimination in the law by the equality guarantees in the Canadian Constitution, and from discrimination in the private sector by human rights legislation. Same-sex families have almost all the same rights (and responsibilities) that hetersexual families have. Transgendered people are winning the cases they bring against discrimination.

That being said, however, please be aware that things are changing rapidly in BC. There has been a change in government that has commited itself to massive cutbacks and government restructuring. Thought most of the basic legal rights discussed in this booklet would be difficult for any government to take away, proposed Legal Aid cutbacks, changes to Human Rights and workplace rights Tribunals, as well as cutting of grants to community services may result in difficulty accessing justice.

Please also note that this booklet is for information and general reference only. It is not to be viewed as providing legal advice. In addition, laws change regularly. If you have a legal matter for which you need legal advice, contact a lawyer. A lawyer will generally provide a 30-minute first consultation for free. There also a variety of free legal services and clinics in the community. Please see the list of resources in the back of this booklet [see post #3].


The Big Picture

Since 1985, the Canadian Charter of Rights and Freedoms has been a part of the Constitution of Canada. All Canadians are protected by the Charter. It applies to all federal and provincial laws.

Under section 15 of the Charter, "every individual is equal before and under the law, and has the right to equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, race, religion, sex, age, or mental or physicial disability."

Though sexual orientation is not listed among the protected grounds, the courts have held that the words "and, in particular" mean that the list of grounds is an open-ended list, and sexual orientation has been added by the courts. Transgendered people in Canada are just beginning to fight in the courts for their equality rights. They are likely to suceed under the ground of "sex" or a new ground of "gender identity." Our rights to equality under the law and to the equal application of the law can only be taken away if the government can prove that to do so would be "reasonable... and demonstrably justified"; or if a federal, provincial, or territorial government enacts a law and says specifically that the law will operate notwithstanding the Charter.

Relying on the Charter, gays, lesbians, and bisexuals have forced the federal government to change almost all laws which recognize "spouses" for any purpose - including pension legislation, legislation about income tax treatment, etc - to include same-sex partners. Two of the main areas of federal law in which discrimination remain are marriage and "spousal privilege" (the right to not have your spouse testify against you in criminal proceedings). The exclusion of same-sex partners from marriage is now being challenged in 3 provinces: British Columbia (BC), Ontario, and Quebec.

Human rights legislation protects people from discriminatino in the provision of goods and services, accomdation, or employment in the private sector. The first province to protect gays and lesbians from discrimination was Quebec, in 1977. Alberta delibrately refused to include sexual orientation in Human Rights legislation, even after most other provinces had done so. Delvin Vriend, a gay man, took Alberta to court, and the Supreme Court of Canada held that if the province was going to protect "some" groups from discrimination - on the ground of sex, race, ancestry, ertc - it had to protect "all" disadvantaged groups, and ordered that the words "sexual orientation" be added to the Alberta legislation.

Human rights protection means you cannot be refused a position or promotion in the Armed Forces because you are gay or lesbian, hotels cannot refuse to rent space for AIDS benefits, employers have to give bereavement leave to employees whose partners die (in the same way they would have to give bereavement leave to a heterosexual partner whose spouse died), and so on.

BC's human rights tribunal and the BC Supreme Court has held that transgendered people are protected from discrimination on the ground of "sex" under the Human Rights Code. That means you cannot be refused service, fired, etc, if you are transgendered, and you are entitled to transition (change from one gender to another) without being fired.

The result of this is that if you are being treated unfairly because you are gay, lesbian, bisexual or transgendered in BC, you probably have legal recourse.


Protection Against Hate

British Columbia has anti-hate legislation in place. The legislation makes it illegal to publish statements that indicate an intention to discriminate against against a person or group of persons, or are likely to expose people to hatred, based on their sexual orientation and other prohibited grounds. BC is also one of only 2 provinces to have establed a Hate Crimes Team. The BC team of 3 members provides education and training to fellow officers and to community groups. It also collects statistics on incidents of hate in the province.

Hate crimes are also covered by the Canadian Criminal Code, which provides increased penalties for people convicted of gay bashing or other hate motivated assaults. The Hate Crimes Team works with both provisions of the Criminal Code and the anti-hate legislation when working with both officers and members of the community to deal with hate crimes.

If you believe that you are the victim of a hate motivated crime, and the attending officer did not record it as such, you are encouraged by the team to contact them directly (at 604-660-2659; call collect during office hours if outside the Lower Mainland) regarding the incident.

If you are the victim of any criminal act, you can be compensated by the Criminal Injuries Compensation Board.


Sex: What's Legal, What's Not

Homosexuality is legal in Canada. You can:

- Be a lesbian, gay man, bisexual, and/or transgendered person.
- Walk arm-in-arm, hold hands, dance, kiss, and hug your same-sex partner in public.
- Talk about sex in private or public.
- Rent, purchase, or sell most lesbian or gay erotica.
- Have sex in the way you want with an adult of the same-sex in a private place. (A car or cubicle in a public washroom are not considered private places.)

If you are a person over 14, but under 18 years of age, you can have a**l sex with whomever you want as long as that person is not considered to be in a position of trust or authority over you, or is a person that you are dependent on.

If you are 14 years of age and under, you can have sex with someone of the same age without penalty.

It is NOT legal for anyone:

- If they are an adult, to have any kind of sex with someone under 14 years of age, or to have sex with someone between the age of 14 and 18 who depends on them, or is in a relationship of trust with them.
- To have a**l intercourse with someone when another person is present.
- To have intercourse with someone under 18 if they are in a position of authority, trust or dependency (ex: a teacher, coach, etc).


Immigration and Sponsorship

We live in a global community. Some of us have developed strong long-term love relationships with individuals of the same sex outside of Canada. If you are a Canadian citizen or a landed immigrant with a same-sex partner who is a citizen of another country, you may deicde to have your partner apply to immigrate to Canada.

Canada has an established procedure for the immigration of gay and lesbian partners of Canadians or landed immigrants. For the application for permanent residence to be successful, there must be strong evidence of his or her intimate relationship with you. If you have that, then unless the person immigrating has a criminal record or a serious health problem, then the application will succeed.

Under new immigration legislation (enforced as of June 2002), same-sex partners will be covered by the same provisions governing common-law and heterosexual partners. The Lesbian and Gay Immigration Task Force can provide detailed information about same sex immigration. Please see the resources listed in the back of this booklet [see post #3].


Living Together: You, Me, and the Law Makes Three!

Until recently, the law treated same-sex partners living together as roommates. If they had children together, the non-biological parent of the children had no legal rights.

That has changed. Under federal and BC law, queer partners are now treated the very same way as opoosite sex couples in a common-law relationship. In turn, common-law couples have most of the same rights and responsibilities that married people do.

What does this mean for you? Unless you make an agreement that says otherwise, if you have been living together for more than 2 years, each of you acquires a right to claim spousal support from the other if you break up - but only if you apply to the court with a year of the break-up.

If your partner has a child when you get togehter, and you contribute to the child's support for more than a year, you have an obligation to contribute to the child's support after you break up if your partner applies to the court within one year. If you and your partner have a child together - either by choosing assistaed insemination or by adoption - then you each have the same responsibility to provide for the child after you break up. And you each have the same right to claim custody and access of/to any child that you have been raising together.

Living together does not give you the automatic right to halve of your partner's property, nor does it give your partner an automatic right to half of yours. Generally, you own what you have bought. However, if you have been together for a long time and have intermingled your finances, a court may decide that the person who does not "own" an asset (ex: a car, house, etc) is nevertheless entitled to a share of it.

Transgendered people still face discrimination in the law regarding marriage. Generally, transsexual people can change their name after the have sex reassignment surgery. But if a transsexual person is already married, he or she cannot get a new birth certificate, because then they would be in a same-sex marriage.

Cohabitation or Relationship Agreements

If you and your partner don't like the idea that you might end up having to support each other, or you want to be the ones that decide how to divide your property, you can write a cohabitation agreement that sets out how you want things to be if you break up.

Developing a relationship or cohabitation agreement at the outset of your living together helps to clarify assumptions and expectations that each of you may have about financial matters, children, the running of your household, how you want to be treated, and other matters. There is no one way to draft a relationship or cohabitation agreement. Some of the things you may want to consider after you have read this booklet and decided to a cohabitation agreement are:

- What property did each of you bring into the relationship? Do you want any or all of these items to remain yours if the relationship breaks down?
- What debts did each of you bring into the relationship? Who will be paying them off?
- How will you organize your finances? Both salaries into one bank account? Seperate or joint accounts?
- Will you be buying things together or own everything seperately?
- How will you handle credit cards, lines of credit, and your mortage? Whose name is on what?
- Who is the beneficiary of RRSP's, RESP's, and/or pensions?
- Are property and/or other investments jointly held or is only one person's name listed?

Adoption

Queer families may decide to adopt a child or children in two situations: a partner may legally adopt the child or children of his or her partner, or the couple may adopt a child of a person in Canada or in another country who has decided to have their child adopted. An individual or couple 19 years of age or older can apply to adopt a child through the Ministry of Children and Family Development in BC, or they can use an adoption agency.

Having a Baby

Some lesbian couples that want to have a child obtain sperm from a fertility clinic, which helps them with the insemination. Other lesbian couples ask a man they know to be a donor.

If you and your partner decide to use a sperm bank, all medical tests, history of the donor, and legal paperwork regarding the donor will be dealt with. However, using a sperm bank can be expensive.

Having a male friend donate sperm is another option. In this situation it woulod be a very good idea for you to have a written contract with the sperm donor. Some things you, your parnter, and the donor will want to agree on beforehand are:

- What kind of relationship, if any, will exist between the biological father, the child, and your family?
- Will the donor's name be listed on the child's birth certificate as the father? (If he is, you will need his consent before your partner can adopt the child.)
- Will the donor consent to the co-mother adopting the child?
- The child could be entitled to a share of the donor's estate when he dies. Will you agree to pay back the donor's estate if the child makes a claim?
- The child could ask the court to direct the father to provide them with monetary support if they are under 19, if they are older and in school, or if they have a disability. Will you agree to pay back the donor if the child makes a claim?
- Has the donor been having safe sex? Is he HIV negative? Is he intending to continue safe sex practices?

[Nikolita edit: See post #4 for information on gay men adopting children, since lesbian couples are covered here.]

Foster Parents

In BC, there are no laws that limit or deny lesbian, gay, bisexual or transgendered people from being foster parents. Children and adolescents who have been apprehended by the Ministry or who have left their homes are often placed in foster homes.

If you and your partner decide to apply to be foster parents, and you meet the age requirement of 19, the Ministry of Children and Family Development will review your references, and conduct background and criminal record checks. Once you meet the qualifications, you can have a child or children placed with your family. You will receive payment from the Ministry for providing foster care.

Having LGBT community members identified as foster parents has been seen as a benefit by the Ministry looking for foster homes for queer and questioning youth.


Financial Matters

On April 11, 2000, Parliament passed the Modernization of Benefits and Obligations Act, which came into effect on July 31 of the same year.

The effect of the passage of this legislation was to amend almost all laws of Parliament at one time in order to award rights, benefits and responsibilities previously not granted to gay men and lesbians "living in a conjugal relationship."

So now, whether you are straight, gay, or lesbian, you are treated as "spouses" for the purpose of almost all federal laws after one year of living together.

Income Tax

Federal income tax is one of the areas affected by the passage of the Modernization of Benefits and Obligation Act. It will be mandatory in the taxation year 2001 for same-sex couples to file tax returns that reflect the fact that you are a couple if the two of you have been living together for one year or more. There are positives and negatives to this change in the change in federal income tax law for same-sex couples. Some of the positives are:

- The ability to transfer certain unused tax credits.
- The ability to pool medical expenses.
- The ability to pool charitable donations.
- If one partner is self-employed, having a deadline of June 15 for filing tax returns.
- The ability to contribute to a spousal RRSO.

The taxation department often reviews a couple's income tax return for proof of their relationship. If you decide not to indicate on your tax return that you are in a long-term, same-sex relationship, and your spouse dies, you may not be able to claim CPP survivor benefits with respec tto the period during which you did not report yourself as "spouses." Some negatives:

- One of you will lose the equivalent-to-married credit.
- Child Tax Benefit and GST could be reduced.
- The benefit of child-care expenses could be reduced.
- You will not be able to double-up on principal residence exemptions.

Pensions

- If you have a pension plan at work, you can name your same-sex partner as your beneficiary. That way your partner will get a "survivor's benefit" after you die.

All Canadians who are 65 or older are entitled to the Canadian Pension Plan (CPP) benefits. CPP benefits are available to the surviving spouse of someone who has died. If you and your partner have lived together for more than a year and one of you dies, the other would be entitled to survivor benefits if the deceased contributed to the CPP for a minimum of 3 years. The surviving partner must be at least 35 years old to receive benefits, unless you have a dependent or are disabled. If a deceased has had more than one spouse, the survivor benefits are divided according to the length of each relationship.

Workers' Compensation

If you are single and are hurt on the job, workers' compensation benefits are available to you. If you have been living with your partner for two years, your partner may also benefit.

If you die from an accident on the job -whether you die at the time, or later from the injury- your partner is eligible for survivor's benefits. If you have children, your children may be eligible too.

If you need to file a claim and you have not been compensated by Workers' Compensation within 3 weeks of the loss of your partner, contact the Workers' Compensation Board Sensitive Claim Department at 604-231-8594.

BC & Disability Benefits

If you are single and cannot work, you are eligible for "BC Benefits" (welfare). If you can't work because of an illness or injury, you are eligible for "disability benefits."

If you are living with your partner, things are more complicated. If that is the case, you do not have the option of considering yourself "independent" and applying for welfare on your own; your partner's income will be taken into account in deciding if you can claim welfare or disability benefits. If you are both eligible for BC Benefits, the amount will be lower for two people who are partners than for two people that are roommates. Filing as a single person when you are living with a partner is considered fraud. There are substantial penalties for mis-representing your status. You will be forced to pay back any monies you have received, and you could go to jail.

If you or your a partner have a condition that renders you disabled, including having AIDS, being HIV positive, or undergoing transition, you may be entitled to disability benefits. You may qualify for BC Benefits Disability program if:

- You are 18 years of age or older.
- Your income is below what you would get on BC Benefits.
- You have a mental or physical impairment that a doctor says is likely to continue for at least 2 years, or is likely to continue for 1 year and recur.
- As a direct result of the impairment, you need extensive help or supervision in order to perform daily living tasks within a reasonable time, or have unusual and continuous monthly expenses for transportation, special diets, or other essential needs.

If you have been employed, you will have the option of receiving federal (CPP) or provincial benefits. Both application processes are complicated, and one may offer you more resources than the other. To get more information about federal and provincial disability benefits, and for help completing the forms to file a claim, you may want to get help from an advocacy group that assists individuals on this matter.

Incapacity

The Representation Agreement Act allows you to appoint someone to be responsible for your personal, medical, and financial affairs if you become incapacitated. The appointed person is called a Representative. Though same-sex partners are included on the list of persons the doctor is to consult if there is no individual nominated as a Representative, the procedure for getting appointed as a "substitute document maker" is time consuming. So having a Representative Agreement is a good idea.


Seperation: Breaking Up Is Hard to Do

If you have a cohabitation agreement that covers what will happen if you and your partner split up, then -congratulations!- you don't need to read this section. This section deals with aspects of ending a live-in relationship.

Queer partners who are considering ending their live-in relationship are in the same situation as a heterosexual couple ending a common-law relationship, so everyone will find this section useful regardless of their sexual orientation, of the gender identity of themselves of their partner.

Issues Which Arise When a Break-up Occurs

When you are thinking about leaving, make sure that you have all of the financial records reoated to the relationship, or copies of them. Also, take your identity documents such as your passport, birth certificate, and the documents of children who will be with you.

Either partner can take all the money from a joint account at any time; take the money you will need, and do not assume that it will still be there later.

You can take your clothes and personal possessions. You may be entitled to take furniture and other household objects as well but it is impossible to generalize about this aspect of the situation.

Safety Issues

There is a myth that spousal abuse doesn't happen happen in same-sex relationships. This isn't true.

Has your partner:

- Hit you or your children?
- Destroyed furniture?
- Thrown things?
- Threatened [you or your children] with a weapon?
- Flown into rages, then apologized, and then raged again?

The most dangerous time in a relationship is when it is ending. That is when most assaults are commited. Here hare some things you can do if you're at risk:

- Call the police.
- If you are a woman, call a transition house. Transgender women should be aware that some women's shelters are welcoming to transgendered women, while others are not. Phone first.
- Get emergency financial assistance from the Ministry of Human Resources (welfare).
- Get legal advice. If you can't afford a lawyer, go to legal aid. Discuss changing the locks (if you are staying in your home) and the possibility of a restraining order.


Who Has Custody/Access to Children

If children were part of your same-sex family, you might have been:

- The child's biological parent.
- The child's co-parent, if the child was born during your relationship.
- The child's adoptive parent; you may have adopted the biological child of your partner.
- The child's step-parent; if the child lived with you, and you had parental responsibilities during the relationship, then you are a step-parent, even if the child has two other natural parents.

When your relationship ends and the children have been a part of your family, some of the biggest questions that will need to be answered by you and your ex-partner are those of custody and access. There are different ways to organize care of the children.

One parent -the biological parent, co-parent, adoptive parent, or step-parent- may have sole custody and guardianship. What that means is that the child (or children) lives at that parent's home and that parent has the right to make the day to day decisions that affect the welfare of the child or children.

Another choice could be for two parents to have joint custody and guardianship. In that case, a child (or children) would spend a substantial amount of time with each parent - for example, one week with one parent and one week with the other parent, although it deosn't have to be an equal amount of time. And both parents would have the right to make the day to day decisions affecting the child (or children).

A third choice for two parents could be joint guardianship with one parent having sole custody. In that case, the child (or children) lives with one parent, the custodial parent makes day to day decisions about the child, but both parents have to discuss the major issues that affect the child (such as what church or school the child will attend).

If a parent does not have custody, he or she is entitled to have access to the child or children. Access is the right of a person who does not have custody of a child to see that child. Access is sometimes called "visitation rights."

If the Child Has Other Parents

If the child you were living with when you and your partner broke up was born to you and a previous partner, or was born to your partner and someone else, there may already be a custody and access arrangement in between those two adults.

You, your partner, and any other parent or step-parent already in the child's life before you came along will need to arrive at an agreement on custody, guardianship, and access.

If the child's parents cannot agree about these matters, any of them can apply to the court for an order. The law in BC treats an application by a lesbian or gay parent the same as an application from a heterosexual couple. The judge examines the circumstances and the proposed living arrangements presented by each parent, and makes a decision based on what the judge deems to be "in the best interest of the child." The judge cannot take into account the sexual orientation of a parent unless for some reason it impacts on the child's best interests.

Child Maintenance

In BC, you have an obligation to pay child support if:

- You were together for 2 years or more.
- You contributed to the support of the child or children for at least 1 year.
- Your ex-partner applies for support within a year of the break-up.

On the other side of the ledger, you have a right to claim child support if:

- You were together for 2 years or more.
- While you were together, your ex-partner contributed to the support of your child for at least a year.
- You apply for support within 1 year of the break-up.

Division of Property and Debt

Division of property for people who have been living together can be complicated. The starting assumption is that each person owns the property in his/her name and that each person is responsible for the debt in his/her name. That includes the property and debts you have brought into the relationship.

But one person may have a claim to share in something in the other's name, if, for example, they helped pay for it, of if they contributed to acquiring it by doing unpaid work that enabled the other person to earn the money to buy it. These are called "equitable claims." Equity is the law's way to make sure the division is fair ("equitable").

Spousal Maintenance

If you and your parnter have lived together for at least 2 years, and one of you is financially dependent on the other when the relationship ends, the financial dependent person can make a claim for "spousal maintnenace." The philosophy behind spousal maintenance is that it should last only for as long as it takes for the dependent person to get back on his/her feet.

Note: There is a one year time limit from the date of seperation to make an application.

Wills and Inheritances

Even if you die without a will, your partner and your children would be entitled to share in your estate (property) in BC. Gay men and lesbians need no longer be fearful that members of their biological family could inherit their estate instead of their same-sex partner.

If your parnter left you out of their will, you can apply to court for a share of their estate under the Wills Variation Act.

Even with these changes to the laws that that recognize same-sex spousal relationships, actions taken in the absence of a will do not necessarily reflect what you would have wanted to do with your property. So... make a will!

If you decide to write your will yourself, the requirements in BC are:

- That you sign it at the end.
- That you have two witnesses of 19 years of age or older.
- That the witnesses can be the beneficiaries of your will, or spousal of beneficiary.
- That your witnesses much watch you sign your will, and that you must watch them sign your will.
- You and the witnesses must initial changes on the will.

You will also want to name an Executor for your will. Your Executor will have full legal powers to handle your affairs upon your death. The Executor is also responsible for dealing with the body and after death (ex: making funeral arrangements), gathering and distributing assets, and getting all the paperwork and documents to the lawyer, so that the lawyer can prepare the Probate document. Your Executor should know where to find your will and other important documents.

Your partner can be the Executor of your estate, but you should consider this matter very carefully. If your partner is grief stricken over your loss, she or he may not feel able to deal with all of the responsibilities attached to the role of Executor.

You have legal obligations regarding your estate to your spouse and your children - biological or adopted.

Note that jointly held property or designated beneficiary insurance, RRSP's, and some pensions are not considered a part of your estate for probate purposes. Those assets go directly to the person named when you die.


Conclusion

Queers have made stunning progress towards equality in law. The situation continues to change quickly, especially for transgendered people whose progress lags behind that of LBG's. If you find an inequality do not accept that it must continue. Get some legal advice... and stand up for the rights of all of us!

Updates to Booklet Topics


- Same-sex marriage becomes legal in Canada on July 20, 2005

- BC Hate Crimes Team



- More information on the BC Hate Crimes Team

- Same-Sex Immigration for Gay and Lesbian Partners

- More information on Canadian Immigration for Same-Sex Partners (not intended to be legal advice)

- Cohabitation Agreements in the UK/General Information on Cohabitation Agreements

- A List of Non-Fiction Books About the Adoption of Children by Gay Men and Lesbians

- Information and (lots of!) Links on Gay Adoption (US-aimed?)

- LGBT Adoption

- Common-Law Marriage Information

- News Article: Same-Sex Partner Can Claim CPP Benefits (.pdf)

- News Article: Ontario Court Upholds CPP Benefits for Same-Sex Survivors