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Gay and Lesbian Law

Your Life. Your Terms. Our Commitment

Specific Legal Issues and Challenges Facing Gay and Lesbian Couples and Individuals in Canada

Why Hire a Gay Family Lawyer or a Gay Immigration Lawyer?

The benefits to gay and lesbian client of hiring a knowledgeable and sympathetic gay lawyer for either immigration or family law matters are best summed up by Supreme Court Justice Sonia Sotomayor’s “Wise Latina” speech: “Whether born from experience or inherent physiological or cultural differences, our gender and national origins may and will make a difference in our judging.” And so will your lawyer’s sexual orientation.

Gay and Lesbian Immigration Law Issues and Challenges

While Canada undoubtedly has some of the most progressive immigration laws for same-sex couples, day-to-day implantation, interpretation and enforcement of these laws are subject to latent biases of the decision makers. Despite full legal equality in Canada, gay men and lesbians remain vulnerable to discriminatory applications of immigration laws and regulations in circumstances where visa officers and even judges fail to adequately grasp and asses the sponsorship applications within their unique cultural, socio-economic, religious and political context.  Although the Federal Court jurisprudence imposes an obligation on immigration officers to be alive to the cultural idiosyncrasies of each case, personal biases or simply a lack of information or knowledge on gay and lesbian applicants’ circumstances in their country of origin may lead to delays, unreasonable submission requests or rejections of the application.

1)    Just as heterosexual couples, gay and lesbian couples who are applying for permanent residence under family class must prove that the genuineness, conjugal nature and duration of their relationship. Unlike their straight counterparts, however, gays and lesbians may also be required to adduce evidence of their sexual orientation.

In many countries, arranged marriages and/or significant financial or familial pressures lead to gay or lesbian individuals marrying a spouse of the opposite sex early in life. The existence of a prior opposite-sex marriage may pose a unique challenge when a Canadian permanent resident or a citizen attempts to sponsor his or her same-sex partner in the future. In addition to requiring the evidence of the veracity of the present relationship, Canadian visa officers may raise concerns about one or both gay partners’ sexual orientation.

For many gay and lesbian spouses, who spent most of their lives in hiding, oppression and in fear for life and safety, the concept of discussing their sexual orientation, identity and the particulars of their intimate same-sex relationship is a foreign and jarring prospect.

Especially for the applicants who hail from countries where homosexuality is against the law and is condemned by religious officials and family members, the private nature of their relationship served for a very long time as the only shield from social disapproval and/or discrimination. Now, in order to qualify for Canadian permanent residence as a spouse, a common-law or a conjugal partner, they must not only declare their homosexuality publicly for the first time, but they must do so with sufficient confidence and consistency to convince an immigration officer that they are gay and in a bona fide relationship with their partner. Having a gay immigration lawyer in charge of your permanent residence applications will ensure that any immigration concerns are addressed knowledgably and conclusively and that you are treated with equality and dignity that you and your partner deserve.

2) Same-sex couples from certain countries may have a more difficult task of documenting their relationship. Beside Canada, only a handful of developed and developing countries recognize same-sex marriages. Of those, most have strict residency requirements for the issuance of marriage licenses. When one partner is a Canadian citizen or a permanent resident, but the other holds a passport from a country that requires a Canadian visa, the parties’ ability to get married in Canada is entirely dependent on the issuance of a visitor visa, which is an uncertain proposition at best. This effectively precludes most of the world’s LGBT population from accessing the institution of marriage. In turn, many gay couples will not be able to apply for permanent residence in Canada as spouses. Instead, they will have to fit their relationship in either of the remaining categories – common law or conjugal partners.

In order to prove on the balance of probability their conjugal or common la relationship, bi-national same-sex couples must submit supporting documentation that chronicles various aspects of their union – from commitment ceremonies, marriage certificates, phone bills, letters, plane tickets to residential leases, joint accounts, insurance declarations and photos, among others. Most gay men and lesbians from gay-positive countries will find it fairly easy to integrate their social and financial affairs.

For same-sex couples from repressive political climates, on the other hand, providing rent receipts, joint leases, joint bank accounts and credit card accounts will be close to impossible. Similarly, letters of support from individuals with personal knowledge of the parties’ relationship will be more difficult to come by in places rife with homophobia. In many cases, fearing rejection or even violence, same-sex couples may not have disclosed their orientation and their relationship to friends and family, requiring additional explanations to Citizenship and Immigration Canada.

As long as you can explain and support your particular relationship model within the existing immigration categories, Canadian immigration law does not require you to conform to traditional heterosexual models. An experienced Canadian gay immigration lawyer will contextualize your relationship to immigration officials and will assist you in compensating for the missing evidence in other areas of your application.

Gay and Lesbian Family and Estate Law Issues and Challenges

Gay and lesbian marriages are legal in Canada and unmarried gay and lesbian couples qualify as common-law spouses under the Family Law Act in Ontario. Married gay spouses can seek and obtain division and equalization of net family property just like straight couples. Similarly, your sexual orientation should play no role in any child custody determination in Ontario. Both parties in a same-sex marriage or a common law relationship may be eligible to apply for child and spousal support, if their unique circumstances allow.

Despite the legal equality in family law between similarly situated same-sex and opposite-sex couples, the experience of separation and divorce differs practically and emotionally.

On a related note, while Ontario provides full inheritance rights to spouses, regardless of their sexual orientation, gay and lesbian partners are wise to make Wills and powers of attorney because one or both of them may not die in Ontario. Life is unpredictable and most countries remain hostile to the idea of same-sex relationships. Intestacy statutes in a place of death may not recognize your marriage and therefore treat you as legal stranger, bypassing a gay spouse in favour of a blood relative.  A properly executed Will can ensure that your spouse inherits your estate irrespective of your place of residence or death.

In his role as a gay family and divorce lawyer in Toronto, Ivan Steele offers a unique perspective on family law issues facing LGBT community.

 
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