Law Times

Law Times • November 9, 2009 FOCUS PAGE 13 Divorce restrictions continue to dog gay couples H BY HEATHER CAPANNELLI For Law Times ow do you a dissolve marriage when it doesn't exist in law? Th at's a question legal minds and gay couples looking to di- vorce have been turning their thoughts to ever since the hon- eymoon was over. Same-sex marriage has been a reality in Ontario since June 2003 when, on the heels of a Court of Appeal decision or- dering Toronto's city clerks to begin issuing marriage licences to same-sex couples, Michael Stark and Michael Leshner tied the knot. It marked the begin- ning of a pilgrimage for many gay and lesbian couples from the United States to Ontario, where they could realize their desire to get married. But many returned home to fi nd state law didn't recognize their marriages. As a result, those who eventually sought divorce found themselves in a legal quandary when their home jurisdiction wouldn't dissolve what it wouldn't rec- ognize. Divorcing in Ontario, meanwhile, requires living here for a full year. Th e issue is not whether gay couples can divorce. An Ontario court decided they could end their marriages in 2004 when a lesbian couple fi led the fi rst same-sex divorce petition in Canada. It's the is- sue of residency that poses the problem since couples need at least one year in Ontario before they can petition the court for divorce. "It seems very unfair that the privilege and right that we give to same-sex couples is something that we can't help them dissolve," says Kelly Jor- dan, a family law practitioner and former chairwoman of the Ontario Bar Association's fami- ly law section. "We say you can get married here but you can't get divorced here or in your own country because it doesn't recognize your marriage." Jordan is regularly contacted by gay people who were mar- ried here but aren't residents. Many of them want to remarry in their home jurisdictions but worry about the implications of doing so before obtaining a proper divorce. "It's really dif- fi cult when these couples call, and you can't provide them with any help," Jordan says. Residency issues are com- mon in the United States for gay couples who have relocated to a jurisdiction that doesn't recognize a union they now want to end. Such was the case for a gay couple who wed in Massachusetts but were living in Texas when they decided to end the marriage. One of the men was re- ferred to Dallas attorney Peter Schulte, who has since been trying to get the state to grant the divorce. Th ey've tried sev- eral ideas so far, says Schulte. "We could have done a separa- tion agreement, but that would CA075 (LT 1-2x4).indd 1 Essentially, the state is asking these couples to sell their house, quit their jobs, move back to the jurisdiction where they got married for a year, and then get divorced. do nothing to show the world that this couple is divorced," says Schulte. One concern was that if one of the spouses went back to Massachusetts in, say, 20 years, the document they would have executed in Texas would not have been a divorce decree, meaning that 20 years of com- munity property, which con- tinues to accrue until there's an actual divorce, would need to be divided between them. Th ere's also a chance that if either man remarried without the benefi t of a divorce decree, authorities could charge him with bigamy. "Essentially, the state is asking these couples to sell their house, quit their jobs, move back to the jurisdiction where they got married for a year, and then get divorced," says Schulte. "It's not fair that a certain group of people should be made to do that." Th e petition was fi led, and the divorce granted, but the state appealed. In a statement, Texas Attorney General Greg Abbott said the government was intervening to, among oth- er things, "prevent other states from imposing their values on this state." Many observers predict the matter is on its way to becoming a constitutional challenge that will pit the full faith and credit clause of the U.S. Constitution, which gov- erns reciprocity in licences and extradition laws, against indi- vidual state legislation. So far, no one has taken on the constitutionality of the issue Canada Law Book Aboriginal Law Since Delgamuukw Analyzes the major legal developments since Delgamuukw and provides practical guidance for those who work in this quickly changing legal landscape. 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Canada changed its marriage laws on July 20, 2005, to alter the defi ni- tion of civil marriage from that between a man and a woman to "the lawful union of two persons to the exclusion of all oth- ers." In the United States, only four states permit it (Massachusetts, Connecti- cut, Iowa, and Vermont). Other jurisdictions, such as New York, Washington, D.C., and California, rec- ognize same-sex marriages performed in other places but don't allow them to be performed at home. LT Kelly Jordan says Ontario residency requirements are a roadblock for gay couples from elsewhere who marry here but now want to divorce. WHAT'S NEW The next generation of Canadian Labour Law Library! Labour Spectrum is your one-stop labour law research tool, combining expert commentary, case law and legislation with functionality. Designed with both labour law and labour arbitration practices in mind you can choose the content that fits your research - Essential or Classic Edition. 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• Mandatory Education
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• Focus On Family Law