Although the law has progressed a lot in the last 20 years, and LGBTQ+ couples have most of the same rights as heterosexual couples, there are key differences. The Divorce Act (federal legislation) and Alberta’s Family Law Act (provincial legislation) were created with heterosexual couples in mind. LGBTQ+ couples were, for a very long time, barred from sanctifying their relationships, so they created other kinds of relationships that suited them better, and many became skeptical of the whole concept of a legal marriage, with its roots in heterosexual, patriarchal systems. Even so, the law did not offer LGBTQ+ couples some key benefits that heterosexual couples had automatically, and the demand amongst LGBTQ+ communities to have access to legal marriages grew.

When marriage rights for LGBTQ+ couples were first being contemplated, Alberta remained hostile to the concept of LGBTQ+ marriages for a long time. The federal Civil Marriage Act, which granted these rights, received royal assent in 2005. Alberta’s own Marriage Act had been amended in 2003 to define marriage as between a man and a woman only, and it invoked the Charter’s Notwithstanding Clause to prevent legal challenges to the law for the next five years. Although the province did not have the jurisdiction to define marriage, and the legislation would not have withstood a constitutional challenge, and LGBTQ+ couples in Alberta were in fact getting married after 2005, the definition remained in our legislation until 2014.

LGBTQ+ couples have suffered and continue to suffer prejudices that deeply affect their relationships and interactions with others. They have often dealt with wage and employment discrimination, housing discrimination, and multiple other forms of discrimination that introduce unique stressors into their relationships. As well, LBGTQ+ couples may have fewer supports from their families of origin than heterosexual couples. Many come from families that rejected their relationships and who they are. Many have created chosen families whose definition still defies heteronormative legislation. Some LGBTQ+ have internalized shame about their gender identity and sexual orientation. As a consequence, their relationships have unique challenges, and these sometimes result in the breakdown of LGBTQ+ relationships.

Additionally, LGBTQ+ couples often do not have the same stereotypical gender roles as heterosexual couples. There may be no clear caregivers of children, for instance. Legally, both parents in a same-sex relationship can be listed on a birth certificate in Alberta, but what happens if a biological parent who is not part of the relationship shows up and tries to assert their rights? Alberta’s Family Law Act states that a child’s parents are the birth mother and biological father unless the child is adopted or the result of artificial insemination. There is no room in that definition for the non-biological parent in a same-sex relationship who has not adopted the child.

Once an LGBTQ+ couple separates, they may also be subject to discrimination in the courts whose biases may drive them to create orders based on heterosexual norms, for example, giving more parenting time to heterosexual, two-parent families than LGBTQ+ individuals or families, or feeling like a birth mother is more of a mother than a non-biological mother. The courts are also not yet responsive to name changes and pronoun usage for transgender and gender variant individuals. Inappropriate references to “he” when it should be “she” and to someone’s old name can be deeply unsettling to members of this community. It is a form of erasure in an environment they may already feel does not recognize their rights.

LGBTQ+ couples have a significant number of challenges during their relationships and after they end. It is important to ensure LGBTQ+ couples are respected throughout the process of separation and divorce, and within the court system itself. They must know that when they see a lawyer, they are walking into a safe space that respects them as individuals. And they must know that their lawyer will stand up for them when they can’t do it themselves. It is equally important to ensure they have appropriate supports around them to assist with the process of separation and divorce.