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INDEPTH: SAME SEX RIGHTS
Same-sex divorce
CBC News Online | September 14, 2004


A Toronto lesbian couple has been granted Canada's, and possibly the world's, first gay divorce.

The women involved in the case are known only as M.M. and J.H. Madam Justice Ruth Mesbur imposed a publication ban on their identities. No references can be made to their ages, occupations, addresses or other identifying characteristics. Court documents say M.M. has "serious concerns about embarrassment and emotional distress as a result of the publication of her identity."

The women married on June 18, 2003, a week after the Ontario Court of Appeal legalized same-sex marriage. They separated five days later. The couple had been together for almost 10 years. A petition for divorce was filed in Ontario's Superior Court of Justice in June 2004.

"Same-sex couples are entitled to the equal respect, recognition and benefit of the law, including all family-law rights and obligations guaranteed to heterosexual couples," said M.M. in court documents.

M.M. cited separation as grounds for divorce and said there is no possibility of reconciliation. Julie Hannaford, lawyer for J.H., said her client would cite different grounds for divorce but refused to divulge what they would be. Other grounds for divorce in Canada are adultery and cruelty.

On Sept. 13, 2004, Mesbur approved the couple's application, ruling the definition of spouse in the Divorce Act is unconstitutional. The act still defines "spouse" as "of a man or woman who are married to each other."

"The definition of spouse in unconstitutional, inoperative and of no force or effect," said Mesbur in her ruling.

Martha McCarthy, lawyer for M.M., called the ruling historic.

"We believe that this is not just the first gay or lesbian divorce in Canada, but actually the first gay or lesbian divorce in the world," she said.

"It was just a question of time," Gilles Marchildon told CBC News Online. Marchildon is executive director of EGALE, a gay rights organization. "In this day and age, divorce is the shadow that hangs over marriage."

Courts in three provinces (Ontario, B.C. and Quebec) and the Yukon have ruled gays have the freedom to marry under the Charter of Rights. That has caused a rush to the altar by thousands of homosexual couples. Prime Minister Paul Martin says he will introduce a bill, likely in October 2004, to rectify the legislation and to put it to a free vote in Parliament. But, it could take up to a year after that for same-sex marriage to be legal nationwide. Martin also has to overhaul the Divorce Act to include gays.

"It may take awhile to resolve the issue," said Nicholas Bala on CBC Newsworld. Bala is a professor of family law at Queen's University. "There are many issues at stake here: what happens if a partner dies and what happens if one of the partner's is from another province where there is no gay marriage. There is nothing to reference."

Gay rights activists say homosexuals have no choice but to go to the courts because it is the fastest way to get laws changed.

Marchildon urged Canadian legislators to move on the matter.

"There's a legal vacuum in this country. The court will need to make a decision based on current law [but] it also has latitude in terms of the statutes involving common-law partnerships."

In 1999, the Supreme Court of Canada ruled that it was unfair that a Toronto lesbian had no rights to sue a former partner for support. The following year, Ottawa passed Bill C-23, which ruled that same-sex couples were entitled to the same federally legislated benefits, obligations and status as heterosexual common-law couples.

Before the ruling in September 2004, when a gay married couple split up, the common-law rules applied. Under the law, there is no sharing of property when a common-law relationship ends, except jointly-owned property.

Lawyers for the federal government had asked the court to defer the case until the Supreme Court rules on the legality of gay marriages nationwide. But the Superior Court decided it was a matter that needed to be dealt with swiftly.

Before the Mesbur ruling, McCarthy said she wrote to the federal government asking it not to fight their court challenge. Afterwards, the federal Justice Department conceded that excluding gays from the Divorce Act was unconstitutional.

"It's a legal no-brainer," said Laurie Arron, a lawyer and co-ordinator of Canadians for Equal Marriage, an umbrella organization of groups advocating for legal same-sex marriage. Arron told CBC News Online that he expected the Superior Court judge to rule in favour of the lesbians' petition. "How can you say to a couple, 'you can't divorce'?" said Arron.

Now that gay couples are allowed to divorce, general provincial laws dictate that each person involved in a divorce should have an equal share of property gained by the efforts of each partner. The contributions of a homemaker and an income-earner are treated the same. Some property is exempt, such as property owned before a marriage, gifts from someone else and inherited property.




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