Ottawa wants to cut definition of spouse from Divorce Act

Friday, July 23, 2004 - Page A6

OTTAWA -- The federal government wants to remove the definition of spouse from the Divorce Act to accommodate divorces between homosexual couples.

Two Toronto women who split up just five days after they got married in June of last year have found the act does not provide for same-sex divorce because it defines spouse as "a man or a woman who are married to each other."

Lawyers for the women, who are being called M.M. and J.H. to protect their anonymity, asked the Ontario Superior Court to remedy the situation by removing the words "to each other" from the definition.

But the government said that it doesn't believe that solution would go far enough.

"We prefer to remove the definition altogether," Justice Department lawyer Lisa Hitch said.

"If we take out the whole definition, and I would point out that the Divorce Act worked for many years with no definition for spouse . . . then it leaves it up to Parliament as to how they want to reword it."

Ms. Hitch argued that simply removing the three words at the end of the definition didn't make a lot of sense. "It would work technically, but it's very messy," she said.

Court rulings in Ontario, Quebec, British Columbia and Yukon that determined gay marriage to be legal have forced Ottawa to draft a bill that recognizes the unions.

The government will wait until the Supreme Court rules this fall on whether that legislation is constitutional and, if the answer is yes, it will change the Divorce Act to comply.

In the meantime, the many intervenors in the same-sex marriage case may want to be heard at the divorce proceedings between M.M. and J.H. to ensure that their point of view is represented.

Janet Epp Buckingham, a lawyer for the Evangelical Fellowship of Canada, which is part of the Interfaith Coalition on Marriage and Family, a group that has intervenor status, said the fellowship had raised this issue early in the debate.

"There wasn't really a provision to allow same-sex couples to divorce and when the federal government proposed their legislation changing the definition of marriage there was no indication that they were going to change other legislation as well," she said.

"The whole change in the definition of marriage has been pushed forward through the courts."

When asked whether her group would object to changing the definition of spouse in the Divorce Act, Ms. Epp Buckingham said it is "part and parcel" of the same issue.

"I see this part of the package to redefine marriage. So we haven't made a decision about intervening [in the divorce case] but we're certainly considering it," she said.

But she agreed that if homosexual marriage is legal, it would be difficult to deny participants in those marriages to divorce.

Derek Rogusky, the vice-president of family policy for Focus on the Family Canada, said the situation highlights the problems of allowing courts to decide social policy.

"When you do things through the courts, you get things piecemeal where you don't think of all the implications, you don't think of all the aspects," he said.

If homosexual marriage is legalized, it would only make sense to provide an out, he said.

But "I'm not so sure that the government's approach of eliminating spouse is the right approach," he said.

"The vast majority of marriages, no matter what, are still going to be husbands and wives, males and females, and I think we have to be careful that we don't neuter all the language just to accommodate what may be a half a per cent of all marriage."


Ottawa Men's Centre