Posted on 07/21/2004 8:29:24 PM PDT by Nachum
TORONTO (CP) - Barely a year after an Ontario court gave its blessing to same-sex marriage, a lesbian couple is trying to untie the knot in what critics dismissed Wednesday as little more than a judicial stunt to test the limits of Canada's divorce laws.
The pair, identified in court documents only as J.H. and M.M., were together for five years prior to their decision to get married last June, but were separated just five days later - two weeks after the Ontario Court of Appeal legalized same-sex marriages.
"It's clearly a set-up case after five days where they are intentionally trying to push their agenda," said Brian Rushfeldt, executive director of the Canada Family Action Coalition.
Rushfeldt dismissed the application as "judicial rot" and assailed the courts for agreeing to hear the divorce petition, which was filed last month in Ontario Superior Court.
"I don't see how you could have a judge hearing a case of two (same-sex) people, when legally in Canada, we don't even have the Supreme Court nor the Parliament legitimizing homosexual marriage."
While courts in three provinces and the Yukon have ruled that the freedom of gays and lesbians to marry is guaranteed by the Charter of Rights, the Divorce Act hasn't been amended to apply to same-sex couples.
It's believed to be the first time in Canada that a legally married same-sex couple has filed for divorce, but it shouldn't come as a surprise, said Julie Hannaford, a Toronto lawyer representing one of the women.
Indeed, preventing same-sex couples from getting divorced would be an even greater violation of their constitutional rights than barring them from getting married, Hannaford said.
"You can't say to people that we're going to punish you for being in a same-sex marriage by never allowing you out of that marriage," she said.
"That just doesn't make sense."
Hannaford dismissed accusations that the divorce is anything more than the "sad end of a marriage," just like any typical divorce proceeding.
"Our clients were in a long-term relationship, and they had a short term - a very short-term - marriage," she said.
Hannaford said she expects the petition will result in amendments to the Divorce Act that would complement the marriage rights that same-sex couples have.
Currently, the law defines "spouse" as "a man or woman who are married to each other." The complainants say they want the definition amended to reflect that men and women need not be married to each other to be legally married.
Federal Justice Minister Irwin Cotler doesn't think the issue is all that complicated.
"It's really basically the same principle as in the same-sex marriage reference, and mainly, gays and lesbians should have the right to divorce as they should have the right to marry," Cotler said on Wednesday night.
Court documents argue the couple is seeking rights already afforded to heterosexual couples.
"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," M.M. says in supporting court documents.
She and her lawyer, Martha McCarthy, are asking the court to grant the divorce and issue an order that the definition of "spouse" under the Divorce Act is unconstitutional and offensive to their equality rights under the Charter.
Federal lawyers have asked the court to defer hearing the case until after the Supreme Court of Canada delivers its landmark decision this fall on the constitutionality of same-sex marriage.
But Superior Court Justice Ruth Mesbur has already established a strict schedule of trial-management conferences throughout the summer and set Sept. 13 as a date to hear the motion.
For his part, Ontario Premier Dalton McGuinty suggested Wednesday that the case should be allowed to continue.
"We certainly support same-sex marriages and logically what flows from that are divorces," he said.
I'm opposed to same sex divorce.
They don't need no steenking divorces!
Me too. I am much more opposed to government-sanctioned same-sex marriage than same-sex divorce. Can a Canadian judge say their differences don't seem serious enough and deny an uncontested divorce, ordering them to stick to their vows? Certainly, if the divorce is politically motivated, the differences here don't sound irreconcileable.
And so the once-happy couple goes lickety-split.
FMCDH(BITS)
Don't forget the turket baster ??
Irreconcilable similarities were cited.
No mockery of traditional institutions here. Nothing to see, move along, move along.
The real winners in gay marriages,,,,divorce lawyers.
"Irreconcilable similarities were cited."
LOL!
Geez, it would serve the lot of 'em right if they wound up with the right to marry, but not to divorce. They would definitely find that "gay" is not a synonym for "happy".
d.o.l.
Criminal Number 18F
Gee, the Gay Lobby always said that they could lick this...
I know, it was tacky but I just couldn't resist the temptation.
Same-sex marriage is "certainly supported" and divorce is 'logical'. What am I missing here?
The didn't actually want to be married. They just wanted the right to marry.
Monty Python's Life Of Brian...
JUDITH: I do feel, Reg, that any Anti-Imperialist group like ours must reflect such a divergence of interests within its power-base.
REG: Agreed. Francis?
FRANCIS: Yeah. I think Judith's point of view is very valid, Reg, provided the Movement never forgets that it is the inalienable right of every man--
STAN: Or woman.
FRANCIS: Or woman... to rid himself--
STAN: Or herself.
FRANCIS: Or herself.
REG: Agreed.
FRANCIS: Thank you, brother.
STAN: Or sister.
FRANCIS: Or sister. Where was I?
REG: I think you'd finished.
FRANCIS: Oh. Right.
REG: Furthermore, it is the birthright of every man--
STAN: Or woman.
REG: Why don't you shut up about women, Stan. You're putting us off.
STAN: Women have a perfect right to play a part in our movement, Reg.
FRANCIS: Why are you always on about women, Stan?
STAN: I want to be one.
REG: What?
STAN: I want to be a woman. From now on, I want you all to call me 'Loretta'.
REG: What?!
LORETTA: It's my right as a man.
JUDITH: Well, why do you want to be Loretta, Stan?
LORETTA: I want to have babies.
REG: You want to have babies?!
LORETTA: It's every man's right to have babies if he wants them.
REG: But... you can't have babies.
LORETTA: Don't you oppress me.
REG: I'm not oppressing you, Stan. You haven't got a womb! Where's the foetus going to gestate?! You going to keep it in a box?!
LORETTA: [crying]
JUDITH: Here! I-- I've got an idea. Suppose you agree that he can't actually have babies, not having a womb, which is nobody's fault, not even the Romans', but that he can have the right to have babies.
FRANCIS: Good idea, Judith. We shall fight the oppressors for your right to have babies, brother. Sister. Sorry.
REG: What's the point?
FRANCIS: What?
REG: What's the point of fighting for his right to have babies when he can't have babies?!
FRANCIS: It is symbolic of our struggle against oppression.
REG: Symbolic of his struggle against reality.
Which one gets stuck paying alimony?
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