Canada's first same-sex divorce

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Legal News Canada - Ontario - Canada's first same-sex divorce

July 21, 2004

Canada's first same-sex divorce
Government must amend Divorce Act

It is a sad, but unfortunately normal, experience to expect that a same-sex divorce would soon follow the first same-sex marriages. News of this occurrence reached the media today.

Martha McCarthy (Photo by, 2001)The case is being handled by Martha McCarthy, one of the star lawyers involved in the Ontario, Quebec, and Yukon challenges for marriage equality. It involves a lesbian couple known only as M.M. and J.H., a couple who were married on June 18, 2003.

The couple's Petition For Divorce is dated June 15, 2021 and lists M.M. as the Petitioner and J.H. as the Respondent. The couple separated on June 23, 2021 after being married for 5 days. There are no children of the marriage. A separation agreement (dated April 30, 2004) is in full force and effect, making the divorce a relatively simple affair, except that in order for the couple to obtain a divorce, the definition of spouse in section 2(1) of the Divorce Act needs to be changed to include same-sex couples.

McCarthy told us today she is asking, "in fact begging the feds to simply consent" to the couple's petition for divorce, including a request to amend the Divorce Act. The federal government consented to the arrival of same-sex marriage in Ontario, British Columbia, and Quebec. If they consent to allow same-sex marriage, they must allow those same couples an opportunity for divorce.

The problem is that the Liberal government has so mishandled same-sex marriage, with ongoing delays, that they have never even been able to keep up with even the painfully slow progress of justice in the courts.

The Liberals launched marriage hearings in response to first same-sex marriage victory in Ontario court, but the marriage committee's work was soon over-run by a second victory in Ontario from the highest court, resulting in the immediate inclusion of same-sex couples in marriage (June 10, 2003).

The 4th question: trading same-sex marriage rights for votesThe Supreme Court reference on legislation will review the new, inclusive, definition of marriage that the Liberal government proposes to write into Canadian legislation (currently the new definition of marriage exists only in judge-owned, common law), but the hearing doesn't take place until October, making it seem unlikely that new legislation would be passed until 2005.

Does that mean no same-sex couple can get divorced until next year? Not bloody likely! Instead, once again, it seems more likely that the Liberals will either consent, or be forced by the court to facilitate the divorce of M.M. and J.H. by changing the Divorce Act as required.

Ironically, this Ontario same-sex divorce may help speed up the arrival of same-sex marriage in the rest of Canada by forcing the government to stop playing games with marriage equality. It is time to act in a timelier manner.

Justice Ruth Mesbur is scheduled to hear the divorce motion on September 13.

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