Early Gay Spouses Seek First Same-Sex Divorce in Canada
By COLIN CAMPBELL, NYTimes on the Web, July 21, 2004
TORONTO -- Two Toronto women who were among the first same-sex couples to marry in Canada are now seeking what may be the first Canadian same-sex divorce.
The women married on June 18, 2003, a week after a landmark court decision legalized same-sex marriage in Ontario, Canada's most populous province.
They had been together for nearly 10 years, but separated after five days of marriage.
The women are now seeking to change Canada's divorce law, which still applies only to marriages between a man and a woman.
Their identities have been kept secret by court order.
While more than 3,000 same-sex couples married in the last year in Canada, the Canadian Divorce Act had not been challenged and amended to reflect the new reality of gay marriage.
"These people were legally married, but under the law of our land cannot be divorced until the Divorce Act is changed," said Julie K. Hannaford, a lawyer for one of the women.
To divorce, the couple must have a judge with the Ontario Superior Court of Justice rule that the current Divorce Act is unconstitutional.
The case is scheduled to be heard on Sept. 13.
Same-sex marriage has been legalized in four Canadian jurisdictions -- Ontario, Quebec, British Columbia and the Yukon -- after court cases in which it was ruled that the traditional definition of marriage violates the Charter of Rights and Freedoms, Canada's equivalent to the Bill of Rights.
The federal government has drafted legislation to legalize same-sex marriage across the country, but has first referred the legislation to the Supreme Court to decide on the constitutionality of gay marriage.
The issue of same-sex divorce may be complicated if the federal government awaits the Supreme Court's decision on marriage before settling the question of divorce, said Martha McCarthy, the lawyer for the other woman.
But Ms. McCarthy added that the divorce matter "is totally a technicality" in the law on same-sex marriage.
"There have been 3,000 marriages in Canada, and we are going to deny them divorce?" she asked.
"Surely that won't happen."
Laurie Arron, a lawyer who works with Canadians for Equal Marriage, an advocacy group, described the issue as more of a "housekeeping matter," and said that laws clarifying divorce would inevitably be addressed just as the issue of same-sex marriage had in Canada.
"What we are dealing with here is cleaning up an inconsistency left by an earlier court decision," he said.
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