Posted on 08/30/2005 5:13:32 PM PDT by dukeman
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).
[No info on why someone would spell her name in lower-case, but who knows these days?]
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 findlay argues that the definition of adultery is as outdated as the original common-law definition of marriage, which was based on procreation.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.
...."I didn't have sex with that woman, Monica Lewinski"...
Canada is a d... cesspool...
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,"
Because Mr. Pickering was married to Mrs. Pickering (satisfying that part) and he engaged in “penetrative sexual contact” (I guess – he signed an affidavit admitting something), and one person assumed the “man” role and one assumed the “woman” role.
That is way too funny, almost as funny as the woman in New York who's middle name is 8.
The Episcopal church doesn't see male homosexual sex as adultery either. Otherwise they wouldn't have made that flamer a Bishop...
You'd think the judge, if not willing to regard it as adultery, would easily classify it as cruelty.
That's it. I can't be bothered anymore. Let the world go to hell.
"Hi Honey, here's a little present from my male boy toy. Spread it around."
Gays have to get the AIDS rate of the hetero population up so we'll stop pointing at them as disgusting, dirty malcontents.
So if a homosexual spouse has sex outside his
"marriage" with another homosexual, would that be adulterous?
Can homosexuals really legally "consumate" their
relationship?
Crazy.
--Travis--
It's British Columbia. Sort of the San Francisco of the north, long known for harboring loons and assorted crackpots.
The crazy thing is, the Liberal (minority) government, with the help of the Quebec separatists, just amended the definition of marriage (by ramming it through undemocratically, without any public consultation) from "a man and a woman" to "any two persons." I guess they forgot about these small details in their rush to destroy the moral fabric of the nation to suit their ideas of social engineering.
She should reapply under the cruelty provision...
As far as divorce goes, there doesn't seem to be any problem with adultry anymore. No big deal.
This from a country that just sanctioned same sex marriage.
So,,,,what happens in the new same sex marriages if a one partner gets it on with a tranvestite?
Never mind, I really don't want to know.
This is nuts! I thought they wanted to be treated the same as married couples!
There's hope yet...
The B.C. Supreme court overturned this crazy decision, and granted the divorce.
http://www.canada.com/national/story.html?id=2092a2eb-1f98-4435-839c-447388c67c69
I know it's gross, but all Ms. Pickering's attorney has to argue is that the "penetree" is a woman in a man's body.
I still hope AIDS mutates into a really fast acting disease. I'm sooo tired of dealing with these freaks.
with rights come responsibilities...
wait until they're paying spousal support (alimony) in Massachusetts...
Right fellow Canucks, adultery or not, shurely it is a sodomy.
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