First gay divorce granted

From Tuesday's Globe and Mail

UPDATED AT 2:53 AM EDT Tuesday, Sep 14, 2004 

Toronto A judge granted Canada's first same-sex divorce yesterday, ruling that the Divorce Act's definition of "spouse" is unconstitutional.

Madam Justice Ruth Mesbur of Ontario Superior Court gave the divorce to a Toronto lesbian couple whose identities were kept secret.

They were married shortly after the Ontario Court of Appeal made same-sex marriages legal in June, 2003. They had been in a relationship for 10 years, but matrimonial harmony lasted less than a week.

"We believe this is not just the first gay or lesbian divorce in Canada, but actually the first gay or lesbian divorce in the world," Martha McCarthy, a lawyer for one of the women, said outside the court.

"It means that the Divorce Act, which was one of the few statutes that required some consideration after we won the freedom to marry, has now also been amended to take into account same-sex marriage."

In her decision, Judge Mesbur declared "unconstitutional, inoperative and of no force and effect the definition of 'spouse'." in the Divorce Act. She reserved her written reasons and recommendations.

"She struck down the provision of the Divorce Act that stood as a barrier to my client's marriage, but she hasn't issued reasons yet about what she's going to do about it," Ms. McCarthy said.

"She could rewrite the legislation; she could just leave it struck down."

Ms. McCarthy said she expected the judge would provide her reasons and a complete discussion of the remedy within the next few weeks.

Canada has about 3,000 same-sex married couples. Same-sex marriage is legal in Ontario, British Columbia, Quebec and Yukon.

Gail Sinclair, who represented the Attorney-General of Canada in court, said this decision does not necessarily mean that same-sex couples can now be divorced in any province in Canada, even though the Divorce Act falls under federal jurisdiction.

"This decision is specific to Ontario," Ms. Sinclair said. "It's a federal statute, but this decision is an Ontario-based statute. We would guide ourselves [elsewhere in Canada] by what we did here, but that does not mean that Madam Justice Mesbur's decision is a decision for other than this jurisdiction."

Ms. McCarthy disagreed with that interpretation.

"This is a federal law," she said. "If a provision is inconsistent with the Charter, it is void. It is now inoperative. That means inoperative for everyone."

James McLeod, a professor of law at the University of Western Ontario, said the decision is consistent with the Court of Appeal ruling in the first same-sex marriage case.

"Once you're married, if you want out, you have to get a divorce, and the words of the Divorce Act reflected the heterosexual marriage laws that we had," Prof. McLeod said. "It talked about a man and a woman who were married getting a divorce. It didn't make any reference to same-sex parties because at the time of the Divorce Act, there was no such thing as same-sex marriage.

"So if it's unconstitutional not to allow them to marry, it has to be unconstitutional not to allow them to divorce.

Prof. McLeod said the problem in this case stems from the fact that the Court of Appeal, when it legalized same-sex marriage, didn't defer its decision to allow any complementary legal amendments to be made. And Parliament refused to step in to make the necessary legal changes. "Parliament, it strikes me, is still trying to figure out what to do," Prof. McLeod said.
The federal government has submitted draft legislation on same-sex marriage to the Supreme Court. Hearings on the matter will begin in three weeks.

Ms. McCarthy said the federal government's reluctance to legislate is comparable to the debate over abortion more than two decades ago.

"It's very consistent with the history of gay and lesbian equality claims in this country that the courts do all the heavy lifting regardless of various legislatures' position that the courts should do as little as possible," she said.
Comment: although it's almost incomprehensible - especially in the area of "family" law - that public confidence in Canada's fair administratation of "justice" could possibly be brought into still further disrepute, Madam Justice Mesbur managed to accomplish as much by turning a willfully blind eye to both the obvious absense of the lawfully required one year separation between the parties and that they quite obviously "married" and then immediately opted to divorce solely to permit an activist Judge to yet again write new law usurping the proper and traditional role of Parliament. - G.