The first question to ask is, do any provincial or federal statutes apply to same-sex couples? If Sara and Allison lived in Canada, the answer to said question would be, yes! Thankfully in 2004, the case of M. (M.) v. H. (J.) established that the definition of spouse as it applies to heterosexual couples is discriminatory and as such breaches s. 15 of the Charter of Rights and cannot be justified under s. 1 as a reasonable limitation. In addition, and pursuant to said case, the definition of “spouse” was redefined such that spouse means either of two persons who are married to one another.

So, following the decision in the above mentioned case Sara and Allison, if they were residents in Ontario, could look to the Family Law Act for guidance regarding resolution of their matrimonial matter. The Family Law Act applies to couples who have not entered into a legally binding marriage and, as such, are considered to be common law/cohabiting.

“Shared custody” in Ontario refers to a situation whereby each parent exercises a right of access to, or has physical custody of, a child for not less than forty percent of the time over the course of a year such that it seems as if the child is residing in two different homes and with both parents. When this is the case, child support obligations tend to differ. It becomes inequitable to require that only one parent pay full child support when reality dictates that the child is living with both parents who are incurring expenses relating to that child.

Therefore, the Child Support Guidelines created an innovative way of calculating child support in shared custody situations so that the amount that the payor-parent is required to contribute actually reflects the increased expenses that are being incurred by the recipient-parent.

To clarify, the Child Support Guidelines are a piece of legislation that dictates the quantum and duration of a child support obligation as well as the tables which assign specific monthly amounts based on the payor-parent’s annual income and the number of children to whom the obligation applies.

Pursuant to s. 9 of the Child Support Guidelines:

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 percent of the time over the course of a year, the amount of the child support order must be determined by taking into account:

(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought

To clarify, a simple example will follow in order to illustrate how the above mentioned concept might apply:

Sara has an annual income of $50, 000.00 and Allison has an annual income of $75,000.00. There are no exceptional increased costs relating to the shared custody arrangement nor are there any exceptional conditions, means, needs or other circumstances that must be taken into account. Consequently, child support in a shared custody situation may be calculated as follows:

The table amount for Sara (income – $50,000.00 and 2 children) = $753.00

The table amount for Allison (income – $75,000.00 and 2 children) = $1098.00

Set off: $1,098/00 – $753.00 = $345.00

Allison would be required to pay $345.00 a month to Sara in child support.

Please note that this example is just that, and does not purport to include Allison’s and Sara’s actual incomes.

However, before he jumps into marriage, there are certain things that Lance Bass should consider. Since his days as a teen heartthrob, when he was one of five members of the worldwide sensation known as N’SYNC, Lance has managed to earn a pretty penny and consequently, he should ensure that his hard work and efforts are protected if he ever decides to obtain a divorce.

In Ontario, domestic contracts (included therein is “marriage contract”) are regulated by the Family Law Act. Section 52 deals specifically with marriage contracts and outlines what sorts of provisions would or would not be enforceable. More specifically, section 52 states:

52. (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
(d) any other matter in the settlement of their affairs.

Rights re matrimonial home excepted
(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.

In addition, section 55(1) of the Family Law Act stipulates that in order for a domestic contract to be valid and binding it must satisfy the following three requirements:

1. it must be made in writing;
2. it must be signed by the parties; and
3. witnessed.

Therefore, a validly executed marriage contract could protect Lance Bass in the following ways (but not limited to the following):

• it could protect his ownership and interest in any property he may own. Meaning that he could exclude it from a Net Family Property calculation so that the value of same would not have to be shared with his spouse, unless the property in question was a matrimonial home;
• it could limit or waive his obligations to support his spouse;
• it could limit his obligations to support any children of the marriage or attach conditions to same; and
• it could determine from the outset the custodial arrangements with regards to any children of the marriage.

In conclusion, Lance has a lot to think about before deciding to get hitched!

“We’re a family, we remain a family and we’re working on the issues…But everything’s fine and everybody’s good…and we’re friendly and everything’s all right.”

It is rumoured that Kelli initiated the separation, but she has yet to make a public statement regarding the status of her marriage and whether she will be filling for divorce. This is likely because she wants to provide herself and her children as much privacy as possible or because she is unsure the future of her marriage. But, she may have decided not to speak publicly about her separation with Rosie because she is unsure about whether she can file for divorce.

Although the parties married in 2004, the legality of this marriage is in question. In 2008 the California Supreme Court held that marriage is a fundamental right that extends to all persons. This means that any laws banning same-sex marriage are unconstitutional and thus invalid.

Despite this decision, Californians voted against equal marriage rights by passing Proposition 8, which will add the words “Only marriage between a man and a woman is valid or recognized in California” to the California Constitution. The validity of Proposition 8 is being challenged on the grounds that it was passed with discriminatory intent and that the California Constitution, a document intended to protect the rights of all Californians, cannot be amended to by a simple majority vote.

Fortunately, in Canada all persons¹, gay, straight and anywhere in between, have the right to marry. But, this does not mean that Rosie and Kelly would be able to get divorced in Ontario if they were married here.

According to Ontario family law, a person must primarily reside in Ontario for at least one year before they can apply for Divorce in Ontario. So, even if Rosie and Kelli married in Ontario, they would not be able to divorce in Ontario unless one of them lived here for a year.

So, regardless of where same-sex couples marry, it is unknown how or if they will ever be able to divorce if they live in a place where their marriage is not recognized. When same-sex couples file for divorce in states that do not recognize equal marriage rights, their applications are denied because the courts cannot grant a divorce when they do not recognize the marriage.

For now, it looks as though Rosie and Kelli will have to stay married until the California courts decide whether Proposition 8 will be used to amend the California Constitution. Should the courts decide that Proposition 8 is invalid, Rosie and Kelli will likely be able to file for divorce just as any other married couple can. But, should the courts decide to amend the California Constitution in accordance with Proposition 8, Rosie and Kelli may never be able to get divorced because their marriage was legal when they wed, but would no be considered valid in order for them to file for divorce.

¹Well, not quite all persons. Disability rights activists are fighting for the right of person’s with mental disabilities to marry.