LGBTQ+ Family Rights in Alberta: A Comprehensive Legal Guide

Equal Rights Under Canadian Law

The legal landscape for LGBTQ+ families in Canada has evolved dramatically over the past two decades. The landmark 2005 Civil Marriage Act made Canada the fourth country in the world to legalize same-sex marriage nationwide. This legislation, combined with earlier court decisions recognizing same-sex common-law relationships, means that LGBTQ+ couples in Alberta now have the same rights, responsibilities, and legal protections as opposite-sex couples.

However, while the law provides equal treatment, LGBTQ+ families sometimes face unique legal situations that require specialized knowledge. Understanding how Alberta's family law framework applies to your circumstances helps ensure your family receives the protection it deserves.

Our Edmonton family lawyers provide knowledgeable, affirming representation to LGBTQ+ clients navigating all aspects of family law, from relationship formation and parentage to separation and divorce. We understand the specific legal and practical considerations that may arise and are committed to helping you protect your family.

Same-Sex Marriage in Alberta

Same-sex marriage has been legal throughout Canada since July 20, 2005, when the Civil Marriage Act received Royal Assent. Alberta was among the last provinces to recognize same-sex marriage by court decision (in 2004), and the federal legislation ensured uniform recognition across the country.

Marriage Requirements

The requirements for same-sex marriage in Alberta are identical to those for opposite-sex marriage:

• Both parties must be at least 18 years old (or 16-17 with parental consent and court approval)
• Neither party may be currently married to another person
• The parties must not be closely related by blood, adoption, or marriage within prohibited degrees
• Both parties must have the mental capacity to understand the nature and consequences of marriage
• Consent must be freely given without duress, fraud, or mistake
• A valid marriage licence must be obtained from Alberta Vital Statistics

Recognition of Foreign Same-Sex Marriages

Canada recognizes same-sex marriages performed in other jurisdictions where such marriages were legal at the time of celebration. If you married your same-sex partner abroad, your marriage is generally recognized in Alberta for all legal purposes, including divorce, property division, and support.

However, complications can arise when marriages were performed in jurisdictions that have since changed their laws or where the legal status was uncertain. If you have questions about whether your foreign marriage is recognized in Alberta, consulting with a family lawyer can provide clarity.

Common-Law Relationships

Alberta's Family Law Act recognizes adult interdependent relationships, which include both opposite-sex and same-sex couples who have lived together in a relationship of interdependence for at least three years, or who have a child together and have lived together in a relationship of some permanence. Couples can also enter into an Adult Interdependent Partner Agreement to formalize their relationship without meeting these criteria.

Rights of Adult Interdependent Partners

Adult interdependent partners have many of the same rights as married spouses, including:

• The right to seek partner support (similar to spousal support)
• Rights under intestate succession laws if a partner dies without a will
• The ability to make medical decisions for an incapacitated partner
• Recognition for benefit and pension purposes
• Parental rights regarding children of the relationship

Property Division for Common-Law Couples

Unlike married spouses, adult interdependent partners are not automatically entitled to an equal division of property under the Family Property Act. Instead, property is divided according to legal ownership, with claims for unjust enrichment or constructive trust available in some circumstances. Understanding these differences is essential for common-law couples planning for or experiencing separation.

LGBTQ+ couples who wish to ensure clear property rights upon separation may consider marriage or a cohabitation agreement that specifies how property will be divided.

Parentage for Same-Sex Couples in Alberta

Establishing legal parentage is one of the most important legal steps for LGBTQ+ families with children. Alberta law has evolved to recognize that families come in many forms, and the legal framework now provides pathways for same-sex parents to be recognized on birth certificates and in court orders.

How Parentage is Established

Under Alberta law, parentage can be established through:

• Giving birth: The person who gives birth to a child is automatically a legal parent
• Genetic connection: A biological parent through sperm or egg donation may have parental rights depending on the circumstances
• Presumption of parentage: A person married to or in an adult interdependent partnership with the birth parent at the time of birth is presumed to be a parent
• Acknowledgment: Both parents can acknowledge parentage by signing a Registration of Birth form
• Court order: A declaration of parentage from the court establishes legal parentage
• Adoption: An adoption order creates a legal parent-child relationship

Birth Registration for Same-Sex Parents

Alberta's Vital Statistics Act allows two parents of the same gender to be registered on a child's birth certificate. When a child is born to a married same-sex couple or adult interdependent partners, both parents can be registered at birth. The process varies depending on how the child was conceived:

Assisted Reproduction and the Vital Statistics Act

Many LGBTQ+ families are formed through assisted reproduction, including donor insemination, in vitro fertilization (IVF), and surrogacy. Alberta's legal framework addresses these situations, though the law can be complex and varies depending on the specific circumstances.

Donor Agreements

When using a known sperm or egg donor, having a written donor agreement in place before conception is strongly recommended. This agreement should address:

• Whether the donor will have any parental rights or responsibilities
• The intended parents' exclusive rights to make decisions for the child
• Any contact or relationship the donor may have with the child
• Financial arrangements and the donor's release from child support obligations
• Confidentiality and disclosure of the donor's identity to the child
• What happens if the intended parents separate

While these agreements may not be binding in all circumstances under Alberta law, they provide strong evidence of the parties' intentions and can be persuasive if a dispute arises later.

Anonymous Donors

When using an anonymous donor through a licensed fertility clinic, the donor typically has no parental rights or responsibilities under Alberta law. The intended parents (the birth parent and their spouse or partner) are recognized as the child's legal parents.

Legal Documentation

To ensure your parental rights are protected, consider:

• Obtaining legal advice before conception about how Alberta law applies to your situation
• Having written agreements with any known donors
• Registering both parents on the birth certificate
• Obtaining a declaration of parentage if there is any uncertainty about legal parentage
• Creating wills and powers of attorney that reflect your family structure

Surrogacy Agreements in Alberta

Surrogacy allows individuals and couples who cannot carry a pregnancy to become parents. For many gay male couples and others, surrogacy is the path to parenthood. Alberta permits altruistic surrogacy, though the legal process requires careful attention to protect all parties.

Altruistic vs. Commercial Surrogacy

Under the federal Assisted Human Reproduction Act, it is a criminal offence to pay a surrogate for her services beyond reimbursement of reasonable expenses. This means commercial surrogacy (paying the surrogate a fee for carrying the child) is prohibited in Canada. However, altruistic surrogacy, where the surrogate receives only reimbursement for pregnancy-related expenses, is permitted.

Reimbursable expenses may include:

• Medical expenses not covered by health insurance
• Legal fees for independent legal advice
• Counseling costs
• Maternity clothing
• Travel expenses related to the pregnancy
• Lost income during the pregnancy if documented
• Childcare for the surrogate's own children during appointments

Surrogacy Agreements

A comprehensive surrogacy agreement should be in place before conception. While surrogacy agreements are not specifically enforceable in Alberta (meaning a court will not force the surrogate to surrender the child), they establish the parties' intentions and govern the relationship throughout the pregnancy. Key elements include:

• The surrogate's agreement to relinquish the child to the intended parents
• The intended parents' commitment to assume all parental responsibilities
• Details of expense reimbursement
• Medical decision-making during pregnancy
• The process for obtaining a declaration of parentage
• What happens if the pregnancy results in multiple births
• Dispute resolution mechanisms

Both the surrogate and the intended parents should have independent legal representation when negotiating and signing a surrogacy agreement.

Establishing Parentage After Surrogacy

After a child is born through surrogacy, the intended parents typically need a court order declaring them to be the child's legal parents. Under Alberta law, the birth parent (the surrogate) is automatically a legal parent. A declaration of parentage transfers this status to the intended parents.

The court application for a declaration of parentage typically includes:

• The surrogacy agreement
• The surrogate's consent to the transfer of parentage
• Evidence of the intended parents' fitness to parent
• Any genetic testing results

Once the declaration is granted, Alberta Vital Statistics can issue a new birth certificate naming the intended parents.

Transgender Parent Rights

Transgender parents in Alberta have the same parenting rights as cisgender parents. A parent's gender identity cannot be used as a basis for denying or restricting custody or parenting time. Courts are required to focus on the best interests of the child, and a parent being transgender is not relevant to that analysis.

Legal Protections

Transgender parents are protected by:

• Canadian Charter of Rights and Freedoms: Section 15 equality rights protect against discrimination based on gender identity
• Alberta Human Rights Act: Prohibits discrimination based on gender identity and gender expression
• Best interests analysis: Courts must focus on the child's needs, not a parent's identity

Parenting Disputes Involving Transgender Parents

If a parent transitions during or after a relationship, this does not affect their legal status as a parent. In parenting disputes, courts will consider factors such as:

• The history of care and the child's relationship with each parent
• Each parent's ability to meet the child's needs
• The child's views and preferences, if age-appropriate
• The stability of proposed living arrangements

A parent's transition may be relevant only to the extent that it affects the child directly, such as how the family discusses the transition with the child or addresses the child's questions. Courts increasingly recognize that children benefit from having relationships with both parents and that a supportive approach to a parent's transition is generally in the child's best interests.

Birth Certificate and Identity Document Changes

Transgender parents may update their identity documents, including having their correct gender reflected on their child's birth certificate as a parent. Alberta allows changes to gender markers on vital statistics records, and a parent's updated identity should be reflected in legal documents concerning their children.

Dissolution of Same-Sex Marriages and Relationships

When same-sex marriages or adult interdependent relationships end, the same legal principles apply as for opposite-sex couples. Understanding your rights and obligations helps you navigate separation effectively.

Divorce for Same-Sex Couples

The divorce process is identical for same-sex and opposite-sex couples. To obtain a divorce in Alberta, you must:

• Have been separated for at least one year (the most common ground), or
• Prove adultery or cruelty (less common)
• Have a connection to Alberta (either you or your spouse must have lived in Alberta for at least one year before filing)

Property Division

For married same-sex couples, property division follows the Family Property Act. This generally means an equal division of matrimonial property acquired during the marriage, with exempt property (such as gifts and inheritances) potentially excluded.

For adult interdependent partners (common-law couples), property division is based on legal ownership rather than automatic equal division. This can create significant issues if property was acquired jointly or if one partner contributed to assets held in the other's name.

Spousal and Partner Support

Both married spouses and adult interdependent partners may be entitled to spousal support (or partner support) upon separation. The factors considered include:

• The length of the relationship
• The roles each partner played during the relationship
• Each person's income and earning capacity
• Economic advantages and disadvantages arising from the relationship
• Any agreements between the parties

Parenting After Separation

When same-sex parents separate, parenting arrangements are determined the same way as for opposite-sex parents. The court's focus is on the best interests of the child, considering factors such as the child's relationships with each parent, the history of care, and each parent's ability to meet the child's needs.

If only one parent has legal parentage (for example, if the non-birth parent never completed adoption or was not registered on the birth certificate), establishing legal standing may be necessary before seeking parenting time or decision-making responsibility.

Alberta Human Rights Act Protections

The Alberta Human Rights Act provides important protections for LGBTQ+ individuals and families. The Act prohibits discrimination based on sexual orientation, gender identity, and gender expression in various areas of public life.

Protected Areas

The Act protects against discrimination in:

• Employment and employment practices
• Tenancy and housing
• Goods, services, accommodation, and facilities available to the public
• Membership in trade unions and professional associations
• Publications and notices

Relevance to Family Law

While family law matters are primarily governed by the Divorce Act, Family Law Act, and related legislation, human rights protections ensure that LGBTQ+ families are treated equally in interactions with schools, healthcare providers, housing, and other services that affect family life.

If you experience discrimination related to your sexual orientation, gender identity, or family structure, you may have recourse through the Alberta Human Rights Commission in addition to any family law remedies.

Practical Considerations for LGBTQ+ Families

While the law provides formal equality, LGBTQ+ families should take proactive steps to protect their rights:

Frequently Asked Questions