Less than 24 hours after a lesbian couple's divorce petition became public, the federal government in Canada issued a statement backing divorce rights for same-sex couples, reports the Toronto Star. The justice department conceded that denying gay and lesbian couples the right to divorce by excluding them from the definition of spouse in Canada's Divorce Act is unconstitutional. "I guess [the federal officials] didn't want to be under fire," Martha McCarthy, a Toronto family lawyer representing the petitioner, M.M., told the Star. She was notified of Ottawa's position in writing Wednesday, after the Star reported that M.M. and J.H., the respondents in the case, have asked Ontario's superior court of justice to grant them a divorce, reported to be the first since Ontario allowed gay marriage in June 2003.
According the the Star, McCarthy, who has been at the forefront of litigation involving same-sex couples, said it's the first time she's seen the federal government, in a contested court proceeding, admit one of its laws violates the equality rights of gays and lesbians. The women, whose identities are protected by a court order, were married June 18, 2003, but they separated five days later, bringing to an end their relationship of more than five years, said Julie Hannaford, a lawyer representing J.H. Although both parties want a divorce, that's still not an option for same-sex
couples in Canada. The Divorce Act restricts the definition of spouse to "a man or woman who are married to each other."
In conjunction with the divorce petition, the couple launched a constitutional challenge to the law, saying the definition violates gays' and lesbians' equality rights under the Charter of Rights. In its material, which was served on McCarthy in response to the constitutional challenge, the government on Wednesday conceded that the definition of spouse is unconstitutional and that it should be declared as such by a court and a remedy provided, she said. The government also suggested a court might want to allow those opposed to giving marriage and divorce rights to gays and lesbians to have a voice in the court proceedings, McCarthy added. "I can tell you, we will be resisting that suggestion," she said. Legal arguments are set to begin on the case on September 13.