Under the provisions of the Family Law Act in Alberta, same-sex couples have similar rights to married couples after they separate.
If you have been living together in a common-law relationship for some time in Alberta and decide to separate, you have rights to parenting, support, and property division—even though the federal Divorce Law does not include rights for unmarried couples.
Let us examine these rights under Alberta’s provisions for adult interdependent partners when they separate.
What is an adult interdependent relationship in Alberta?
There is no such term as “common law” used in Alberta’s legislation. Instead, when two couples of any sexual orientation choose to live together as a married couple but without having a formal marriage ceremony, this is referred to as an adult interdependent relationship.
So, when same-sex couples cohabit in a marriage-like relationship for three years (or if they have children), specific rights are afforded to each partner when they separate.
Under Alberta law, adult interdependent relationships are recognized when the couple:
- Share one another’s lives,
- Are emotionally committed to one another, and
- Functions as a single economic and domestic unit.
Same-sex couples in adult interdependent relationships should have a legally enforceable cohabitation agreement that outlines each other’s rights if the relationship breaks down.
However, even if such an agreement does not exist, there are protections under Alberta’s Family Law Act and Family Property Act. This legislation helps determine important matters such as parental rights, custody, child support, property division, and the right to interdependent support (similar to spousal support).
How do you end an adult interdependent relationship in Alberta?
Couples who intend to end an adult interdependent relationship in Alberta do not need any formal separation period to do so as divorcing couples do.
However, one of several actions may be taken by adult interdependent partners to end the relationship and trigger their rights under provincial law:
- The partners sign a written agreement stating that their relationship is over—with no possibility of reconciliation.
- The partners live separately for one year with one or both spouses intending to end the relationship.
- One of the partners enters into another adult interdependent relationship with someone else.
- One or both partners get a declaration of irreconcilability under the Family Law Act.
What is the Family Law Act?
The Family Law Act of Alberta deals with many of the key matters that affect families when partners separate.
Guardianship of a child, parenting and contact orders, and child and partner support are all addressed. Adult interdependent partners and their children are given many of the same rights (and the same obligations) as married couples and their children.
For instance, same-sex couples can refer to the Family Law Act to:
- Determine the amount of interdependent support for partners.
- Calculate who pays child support and how much.
- Determine who the parents of a child are, including cases where the child was conceived through assisted production.
- Arrange guardianship of a child.
What are the parenting rights of same-sex couples who separate?
In same-sex relationships just as in marriages, the best interests of the children are paramount when Alberta’s family court issues orders.
Ideally, parents make decisions in the best interests of their children after calm discussions without the need for a judge’s intervention. Decisions about parenting, who makes decisions about upbringing, who the child lives with most of the time, visitation schedules, child support, and so on are sensitive matters.
If there is a lack of agreement on these matters, the assistance of a family lawyer or child custody lawyer may be required for negotiation, mediation or even litigation.
For same-sex couples in adult interdependent relationships, if both partners are the child’s parents (through a joint or second-parent adoption), they remain so after the relationship ends—and all parental rights are retained by both partners.
If only one partner is the child’s biological parent, however, and the non-biological parent has not adopted the child, the situation is less certain. The parent may retain rights—but this usually depends on his/her relationship with the child.
During separations, emotions can take over, disputes develop, and new relationships start. It is best, therefore, to have signed agreements that decide all the key matters in the event of the relationship ending.
What are the guardianship rights of same-sex couples in Alberta?
Guardians retain their guardianship rights even after a same-sex relationship ends unless a court order terminates the guardianship agreement or both parents agree that it should be ended.
Can same-sex couples who separate in Alberta claim child support?
Child support is the right of the child, not the parents. So, when same-sex couples with children separate in Alberta, one of the parents will likely have to pay child support to fulfill the moral and legal responsibility to help support the child’s financial needs until he/she reaches the age of 18.
In child support cases, the “primary parent” is the parent who looks after the child 60 percent or more of the time. The other parent is expected to pay an amount of support under Alberta’s Child Support Guidelines.
When each parent spends at least 40 percent of parenting time with the child, child support calculations are based on:
- The difference between what each parent would pay the other if they were the primary parent,
- Additional costs associated with shared parenting, and
- The unique circumstances of each party and the child.
Child support for same-sex couples can be complex, as several legal actions have demonstrated in Alberta. Some confusion still exists with cases involving a person who has custody of the child not being recognized by the court as a legal parent despite his status as a custodial parent.
Such issues are still being worked out by the Alberta courts. Anyone facing a potential parenting or child support issue due to an adult interdependent relationship ending should seek legal advice from a qualified family lawyer.
Can same-sex couples in interdependent relationships claim spousal support after separation?
Same-sex partners who separate from verified adult interdependent relationships in Alberta have the right to claim the equivalent of spousal support.
A partner’s right to claim this support can be established in three ways:
- By signing a legally enforceable cohabitation agreement,
- If compensation is required for losses due to the role played in the relationship or due to the breakdown of the relationship, or
- If support is required to help the partner transition to a single life where he/she can be self-sufficient.
If you live in the Calgary area and need assistance with any matters concerning common-law relationships, the experienced lawyers at Jennings Family Law can help you. Call us today at (403) 316-0138 Book a case evaluation to discuss your situation.
