For some strange reason this reminds me of Clinton.
Canada divorce law says gay fling 'not adultery'
CTV.ca News Staff
A Vancouver woman is challenging Canada's divorce legislation after a judge said her husband's extramarital affair with a man did not legally count as adultery.
Shelly Pickering, 44, had been married nearly 17 years when, last October, she discovered her husband was having an affair with a younger man.
Pickering and her husband separated immediately and she filed for divorce two months later, seeking an immediate end to their marriage.
Her husband signed an affidavit on Jan. 5, 2005, acknowledging his adulterous relationship, and did not appear in court in February to contest the divorce.
Canada's Divorce Act allows for a no-fault divorce after a one-year separation, on grounds of marital breakdown.
It also allows for an immediate divorce if there is admitted or proven adultery or cruelty.
But Justice Nicole Garson of the B.C. Supreme Court refused to grant an immediate divorce -- because the definition of adultery in common law does not include homosexual relations.
The judge also told Pickering that she would hear the case again if a lawyer could argue why the legal definition of adultery should be broadened to include same-sex adultery.
Pickering's lawyer, barbara findlay (who spells her name in lower-case letters), said the traditional definition of adultery, which dates back to church-based courts in England, is "penetrative sexual contact between a man and a woman not married to each other and one of whom is married to someone else."
Findlay argues that the definition of adultery is as outdated as the original common-law definition of marriage, which was based on procreation.
"The grounds for divorce should be interpreted in a way which is consistent with the views of the Supreme Court of Canada about the purpose of marriage," findlay told The Globe and Mail, noting that the top court has deemed marriage to be the intimate union of two people, regardless of gender.
Pickering realizes that her divorce may not come any more quickly through this legal challenge than if she had simply waited the requisite one year and obtained a no-fault divorce. But she says she is doing it to help others who find themselves in the position she did.
"It's important to me to take back that bit of control," she told The Globe. "I feel like I haven't had any control . . . I wasn't given the facts. . ."
While the Divorce Act falls under federal jurisdiction, it is administered provincially. The results of the Pickering case could set a precedent not only in British Columbia but in other provinces.
Chris Girouard, a spokesman for the Justice Department, said he does not know of other similar cases or decisions that have challenged the heterosexual definition of adultery in Canada.
Judith Bowers, a B.C. lawyer who works for the Justice Department, will be present at Tuesday's hearing at the B.C. Supreme Court and will file a brief outlining their position to the court at that time.
Findlay said she will also launch a constitutional challenge based on the Charter of Rights and Freedoms, arguing that the definition of adultery discriminates against gays and lesbians by making divorce less accessible to them than to heterosexuals.
"Try not to think about dying, that might make you nervous."