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Lesbians' Divorce OKd After Key Canada Ruling

Ontario jurist faults definition of spouses in federal act as too narrow and unconstitutional.

September 15, 2004|From Associated Press

TORONTO — An Ontario court has approved Canada's first same-sex divorce after a judge ruled that the definition of spouses in the Divorce Act was unconstitutional.

The lesbian couple -- identified in documents only as J.H. and M.M. -- had been together for almost 10 years when they married in June 2003, shortly after the Ontario Court of Appeal legalized same-sex marriage. They separated five days later.

Superior Court Justice Ruth Mesbur on Monday struck down the section of the Divorce Act that said only spouses -- defined as a man and woman -- could divorce.

"The definition of a spouse is unconstitutional, inoperative and of no force and effect," Mesbur said.

Lawyer Martha McCarthy, who represented one of the women, said the ruling was historic.

"We believe that this is not just the first gay or lesbian divorce in Canada, but actually the first gay or lesbian divorce in the world," she said outside court.

"It's an important step when we talk about the legal landscape as it exists at the moment."

In July, less than 24 hours after the couple's divorce petition was publicized, the federal Justice Department acknowledged that excluding gays and lesbians from the definition of spouse in the Divorce Act would prohibit them from divorcing and was therefore unconstitutional.

"It would be absurd to say it's legal to get married but not divorced," McCarthy said. "As usual, though, the federal government's approach to all things involving same-sex issues is, 'If we can obfuscate and delay, we will.' "

McCarthy said the couple realized their marriage was a mistake and there was no reasonable possibility of reconciliation.

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