Now it's divorce, same-sex style
Split believed to be a Canada first
Separated 5 days after marriage

TRACEY TYLER
LEGAL AFFAIRS REPORTER

Jul. 21, 2004. 06:26 AM

A Toronto couple is seeking what is believed to be Canada's first same-sex divorce.

The women, known only as M.M. and J.H., tied the knot on June 18, 2003, a week after the Ontario Court of Appeal legalized same-sex marriage, but separated five days later.

They had been a couple for more than five years, said Julie Hannaford, a lawyer representing J.H.

"This is the first same-sex divorce case in Canada to our knowledge," Martha McCarthy, a Toronto family lawyer, says in a divorce petition filed on behalf of M.M.

The petition, filed in the Superior Court of Justice last month, promises to add a new dimension to the prickly legal debate over same-sex marriage, which is heading to a hearing in the Supreme Court of Canada this fall.

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.

But M.M. and J.H. want the same divorce rights other couples have.

"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 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. The act defines "spouse" as "of a man or woman who are married to each other."

Hannaford says her client also wants out of the marriage but will be putting forward different grounds.

M.M. cites separation and says there is no possibility of reconciliation. The couple signed a separation agreement on April 30. Other grounds for divorce in Canada are adultery and cruelty.

Lawyers for the federal government asked the court to defer the case until the Supreme Court rules on its reference involving the constitutionality of same-sex marriage. But Madam Justice Ruth Mesbur set a strict schedule of trial-management conferences through the summer and listed the divorce motion for Sept. 13.

On June 17, Mesbur also imposed a sweeping publication ban on the identities of M.M. and J.H., ordering no reference be made to their names, ages, occupations, addresses or other identifying characteristics.

M.M. has "serious concerns about embarrassment and emotional distress as a result of the publication of her identity and does not wish for her personal life to become known to her professional colleagues," McCarthy said in court documents.

"There is a certain stigma associated with being ... the first gay or lesbian couple to divorce," the documents said, noting the case "will likely fuel further public debate."

Individuals seeking divorce are normally required to state their names on their court petition, but Ontario's Rules of Civil Procedure allow for an exception "when necessary in the interest of justice."

It's necessary in this case because M.M. "will suffer irreparable harm" and be undermined professionally if identified, McCarthy said. J.H. consented to the ban.

Hannaford and McCarthy say their clients didn't set out to reform the law by deliberately entering into a quickie marriage.

"It's a marriage that didn't work out," McCarthy said, "just like marriages of straight people."

 

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