Posted on 08/30/2005 7:37:46 AM PDT by Loyalist
Shelly Pickering thinks it is unfair that her husband's extramarital affair with a man doesn't legally count as adultery. So today, she's heading to court in Vancouver to challenge the law.
The 44-year-old Vancouver resident had been married nearly 17 years when, in October of 2004, she discovered her husband was having an affair with a younger man.
She and her husband separated immediately and she filed for divorce two months later, seeking an immediate end to their union.
Canada's Divorce Act allows for a no-fault divorce after a one-year separation, on grounds of marital breakdown.
It also allows for an immediate divorce if there is admitted or proven adultery or cruelty.
Ms. Pickering's ex-husband signed an affidavit on Jan. 5, 2005, acknowledging his adulterous relationship, and did not appear in court in February to contest the divorce.
But Justice Nicole Garson of the B.C. Supreme Court declined to order the immediate divorce, because the definition of adultery in common law does not include homosexual relations.
The judge also told Ms. Pickering that she would hear the case again if a lawyer would argue why the legal definition of adultery should be broadened to include same-sex adultery.
The traditional definition of adultery, which dates back to church-based courts in England, is "penetrative sexual contact between a man and a woman not married to each other and one of whom is married to someone else," notes Ms. Pickering's lawyer, barbara findlay (who spells her name in lower-case letters).
Ms. findlay argues that the definition of adultery is as outdated as the original common-law definition of marriage, which was based on procreation. Times have changed, along with the definition of marriage, and so too should the definition of adultery, she said.
"The grounds for divorce should be interpreted in a way which is consistent with the views of the Supreme Court of Canada about the purpose of marriage," she said, noting that the top court has deemed marriage to be the intimate union of two people, regardless of gender.
Ms. findlay suggests that the definition of adultery be amended to something along the lines of "intimate sexual contact between two people not married to each other and one of whom is married to someone else." She said such a definition is closer to what the public already considers to be adultery.
Ms. Pickering realizes that her divorce may not come any more quickly through this legal challenge than if she had simply waited the requisite one year and obtained a no-fault divorce. But she says she is doing it to help others who find themselves in the position she did.
"It's important to me to take back that bit of control," she said. "I feel like I haven't had any control [during the marriage] . . . I wasn't given the facts. . ."
While the Divorce Act falls under federal jurisdiction, it is administered provincially. The results of the Pickering case could set a precedent not only in British Columbia but in other provinces, Ms. findlay said. "If we win this case, I think it will be followed across the country."
Chris Girouard, a spokesman for the Justice Department, said the department does not know of other similar cases or decisions that have challenged the heterosexual definition of adultery. Judith Bowers, a B.C. lawyer who works for the Justice Department, will be present as an intervenor at today's hearing at the B.C. Supreme Court and will file a brief outlining their position to the court at that time.
Ms. findlay said she will also launch a constitutional challenge based on the Charter of Rights and Freedoms, arguing that the definition of adultery discriminates against gays and lesbians by making divorce less accessible to them than to heterosexuals.
For the past two decades, Toronto psychotherapist Caryn Miller has devoted part of her practice to couples with one straight partner and one homosexual or lesbian partner.
"The courts really have to catch up to protect the straight spouse in this situation and to legitimize the union of gay and lesbian people," she said.
Ms. Miller said that homosexual or lesbian infidelity is often labelled as something distinct from adultery by the gay spouse, but the effect can be no less devastating for the heterosexual spouse.
Special to The Globe and Mail
only in Canada ...
It is all Bill Clinton's fault, even in B.C.
Sorry, balloonophiles, but you guys started this madness.
Well, Canada's favorite US president told us that oral sex isn't really sex.
And she's absolutely right. If homosexuals want to be treated just like heterosexuals, then they have to accept being treated the same in every way.
Now that they're openly pushing for "gay marriage," how would the gay slike it if their "spouse" had a fling with a person of the opposite sex? Wouldn't they consider that "Adultery" with all the betrayal that conveys? Wouldn't a lot of them want to dissolve the "marriage" over it? Well, in that case, how can a person in a straight marriage having a fling with a person of the same sex NOT be adultery and NOT be every bit as much grounds for divorce, if the parties so choose, as a heterosexual affair?
Logic, people, logic.
Clinton appointed judges in Canada? This has got to be a clinton appointee.
When you are a sodomite, what does adultery really matter. Kinda like getting busted for J-walking when you just robbed a bank.
And I suppose Justice Nicole Garson is where she is because the law doesn't prevent idiots from election or appointment.
Balloonophiles? Forgive my ignorance, but what the hell are you talking about...?
I guess when you're so perverse, moral relativity rules supreme.
PING!
ah, the country that is so proud that it passed some sort of Homosexual marriage rights, is the same country that doesn't recognize such 'acts' outside of marriage as infidelity. Let's not just throw one rock at the institution of marriage, let's throw two ... sad situation for 'family values' north of the border.
I just can't get past the pretentiousness of any j@ck@ass who does this.
Well, what's good for the gander is good for the gander, I guess.
Seems to me that Justice Nicole Garson is doing just what most conservatives want from judges; she's refusing to make new law and is looking for either proper justification from the lawyers or is looking to goad the legislature to fix the law. Don't blame her for someone else's mess.
Adultery is adultery is adultery. I don't think we want to change the "definition" of adultery any more than we want to change the definition of marriage. The solution to her particular problem is to wait a year for her no fault divorce. It won't kill her. The last thing we need is to change the meaning of legal formulations and the traditional understanding of words just to suit the latest convenience.
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Freepmail little jeremiah and scripter and tell us if you want on or off the homosexual agenda ping list.
It doesn't count as adultery, because mutually consenting homosexuals doesn't count as marriage.
Actually I consider this Judge to be pretty smart. She just laid the foundation to prohibit the legalization of gay marriage.......
Just a little to late.
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