Same-Sex Couples

govicinity / iStock / Thinkstock

In recent decades, gays and lesbians have gained many new rights in Quebec and Canada. Given that the law has changed a lot, it's not always easy to know what rights same-sex couples have. People often have questions about adoption, marriage and insurance benefits. This article clarifies the legal situation of same-sex couples.

 

Can same-sex couples marry?

Yes. In Canada, same-sex couples can get married.

 

Can clergy members be forced to marry same-sex couples?

No. Members of the clergy (priest, minister, rabbi, imam, etc.) can't be forced to marry two people if this is against their religion. This would go against their right to freedom of religion.

Same-sex couples must therefore be married in a civil ceremony or within a religion that allows same-sex marriages.

 

If a same-sex couple gets married in Canada, will their marriage be valid all over the world?

Not necessarily. Each country has its own rules about marriages celebrated in other countries. For more information, contact the embassy or consulate of the country you are interested in.<

 

Besides marriage, are there other options for same-sex couples?

Yes. In Quebec, all couples can enter into a civil union, whether or not they are same-sex couples. A civil union is similar to marriage, but there are some important differences.

 

Can same-sex couples adopt a child?

It depends on the type of adoption.

Same-sex couples can adopt a child in Quebec if they meet the conditions for adoption.

The rules on international adoption are different. The child's country of origin sometimes makes it difficult for single people and same-sex couples to adopt. Some countries specifically prohibit adoption by same-sex couples, while others don't have any rules about whether or not they are allowed. Contact the Secrétariat à l'adoption internationale (international adoption secretariat) for a list of countries and their selection criteria.

 

Can I leave my property to my same-sex spouse in a will?

Yes. We are all free to decide how our property will be distributed after we die. You can therefore leave your property to your spouse under a valid will.

If you don't have a will, the law will determine who inherits your property and in what share.

 

Will my spouse have the right to a surviving spouse's pension if I die?

It depends. Retraite Québec (pension board) pays a surviving spouse's pension to spouses of the same or opposite sex who are married or living in a civil union and to common law couples (also called "de facto spouses"), depending on how long they have lived together. There are two types of benefits: the surviving spouse's pension and the death benefit.

  • The surviving spouse's pension is a basic income paid to a person after her spouse dies. To be eligible, the deceased person must have made enough contributions to the Quebec Pension Plan. A common law spouse will be recognized as a surviving spouse if the couple lived together for three years right before the deceased passed away, or for one year if they had a child. If the deceased was married or lived in a civil union, his spouse will receive a pension if he died at least one year after the marriage or civil union.

    For same-sex spouses, the law applies to any death since April 4th, 1985. If your spouse died several years ago, you can claim your surviving spouse's pension now, even if you applied for it at the time and were refused.

    However, if the spouse died several years ago, the surviving spouse won't receive the total amount of the pension. Instead, she will receive a retroactive pension for the 12-month period leading up to the claim. Therefore, it is important to act quickly.

  • The death benefit is a single payment of $2,500 to help cover funeral costs. The person who paid the funeral costs has priority, and this can be the spouse. If the person who paid the funeral costs does not apply for the benefit within 60 days following the death, the heirs will receive the benefit. If the funeral costs are less than $2,500, the difference will be added to the estate.

    You have five years after your spouse dies to submit a claim. After this time, you will no longer be allowed to the death benefit.

To learn more about whether you qualify and the possible methods of payment, visit the website of the Retraite Québec.

 

Can my spouse be a beneficiary under my life insurance policy?

Yes. You can appoint anyone you want as a beneficiary under your life insurance policy, and this includes your same-sex spouse. You can appoint him as your beneficiary in the policy itself or in a will.

 

Can my drug insurance plan cover my same-sex spouse?

This is not an option, but a requirement. Under the Act respecting prescription drug insurance, everyone must participate in a group insurance plan if one is offered through their employer. They must also include their spouse and children as beneficiaries, unless they are already covered under another group insurance or benefit plan.

In many cases, the employer or the employee who manages the benefit plan learns the spouse's name. The obligation to declare whether you have a spouse does not always have the same consequences for homosexual couples as it does for heterosexual couples. To protect your privacy, your employer must ensure that this information remains confidential.

 

I have a child from a previous relationship. Can I be refused custody because I am homosexual?

No. In theory, the courts should consider only one factor when deciding which parent should have custody: the child's interest (i.e., his or her moral, intellectual, emotional and physical needs). Your rights concerning your child can't be limited because of your sexual orientation.

 

How can I make sure my spouse is able to make decisions about my health if I am no longer able to?

The spouse of an incapacitated person can give consent on his behalf, whether the couple is joined by marriage, civil union or common law union.

If you want to make sure that only your spouse can make healthcare decisions on your behalf, you should prepare a (protection mandate (in anticipation of incapacity), advance medical directives or a living will.

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.