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Same-sex divorce might mark the end of archaic adultery and custody laws

The gay divorcee - by Wiley Norvell

The Criminal [Law] Bar spent the ’70s and ’80s and ’90s educating the police and the judiciary about gay and lesbian issues, and I think the Family [Law] Bar now has to do that,” says Frank Addario, attorney for Glad Day Bookshop in its legal challenges against the Canada Customs and Revenue Agency. As Glad Day can vouch, teaching equal treatment to judges and courts is a rocky process. As more married queer couples come under the purview of Canada’s Family Law Act and Divorce Act, they’ll find themselves in a similar period of “transition” with respect to child custody, adultery and other issues on which they may differ from their straight counterparts.

A September 13 hearing in Ontario’s Superior Court of Justice will determine whether Canada’s first gay divorce case may proceed before Parliament finalizes same-sex marriage legislation. Attorney Martha McCarthy, who represents one of the two women filing for divorce, is confident the procedure will move ahead. “It’s hard to imagine, given the cases that have come before, a court not agreeing that the Family Law Act should include married same-sex couples.”

Canada’s divorce laws, which rank among the world’s most progressive, are relatively objective. “Our Family Law Act isn’t concerned with conduct,” says McCarthy. “Our property division is based on a formula.” No-fault divorce, a Canadian institution since 1968, means that no reason needs to be given for a divorce. But there remain areas where subjectivity in divorce cases persists, albeit by necessity, in which a same-sex spouse may find himself or herself on the wrong side of a value judgment.

The nastiest part of family law, child custody, is just such an arena. “In theory, it doesn’t matter how somebody lives, save to the extent that it impacts on the ability to parent,” says family law specialist Robert Halpern. “Good counsel try and avoid it, but often a character assassination is done under the auspices of ‘the behaviour complained of would reflect one’s ability to parent.’” Halpern concedes such a courtroom attack, which could focus on one parent’s sexual conduct, occasionally meets with success. Queer parents in the midst of a custody proceeding could defame one another’s character, taking advantage of the heteronormativity within the court system.

“This is the human quality to this,” says Halpern. “Yes, there will be lawyers who raise it. Yes, there will be judges who consider it, either explicitly or implicitly.” Such an eventuality could mire courts in questions of whether a particular gay lifestyle (rather than gay identity) has any relevance to parenting.

Considerations of that sort are only one part of the custody equation. Another primary focus of the court would be to preserve existing parental roles. That means the stay-at-home mom in a lesbian marriage has a leg up over the breadwinner. “There’s an advantage to the primary caregiver,” says McCarthy. “The priority of the court will be to continue the pattern of caregiving that existed before the separation, to change as little as possible.” Courts do, however, acknowledge the ability of both parents to change. Ideally, a ruling would maximize the time both parents had with the child.

In theory, a lesbian who adopts the biological child of her spouse has equal recognition as a parent under law. But while the claims would certainly be heard, it is possible that a judge will favour biology over other factors like caregiver status, capacity to educate or the child’s own wishes. “Our courts have a history of being quite interested in biology,” admits Martha McCarthy. “[But] usually biology doesn’t govern. We don’t say, like in the U.S., that the non-bio mom is a stranger to the child and has no standing to appear before [the court].”

Many lawyers and judges still have difficulty separating parents from their traditional gender roles, despite a gender-neutral legal code. “Once you start working with two men and two women and working on those issues against the background of the precedents we have, which are all heterosexual couples, we’ll become more alert to the kind of gender distortions that are present in the system,” says Lorraine Weinrib of the University of Toronto’s Faculty of Law. Dispelling those presumptions in the context of same-sex families may eventually benefit straight families as well, reminding courts unequivocally that a father can be a primary caregiver and a mother the primary income-earner.

A significant legal change to divorce – courtesy of queer couples – will likely involve (big surprise) adultery. Because it’s so rarely invoked as grounds for divorce and because adultery has no bearing on the actual outcome of a divorce proceeding, the term’s actual definition has become muddy. “At the moment there are a bunch of cases that say adultery requires penetration. There is also a case out in Nova Scotia about two women that said adultery was committed…by petting to climax,” recalls McCarthy.

Open relationships, not uncommon among queer couples, represent uncharted waters for Canada’s legal system. Legally speaking, two married men in an open relationship who have sex with other partners have each provided grounds to sue for immediate divorce. “Some judge may hear the case and say an open relationship amounts to adultery and if at any time somebody decides to seek a divorce on that basis, regardless of the parties’ understanding, that will amount to adultery,” says McCarthy. She believes it’s equally possible that a judge might take a more nuanced view of adultery by examining the relationship’s pre-existing arrangement.

“You could have a relationship between two men, where there wouldn’t be physical fidelity but there would be emotional commitment,” says Weinrib. “[Then] the adultery [angle] really doesn’t help you, and the courts will have to grapple with that.” She ponders the legal revisions necessary to create specific criteria for adultery in open relationships. “I’m not sure the Canadian Parliament is ready for those kinds of problems.”

“Somebody’s going to have to do a first adultery case in which the court says that straight notions of adultery may have to be flexible,” says McCarthy, pausing. “Please don’t anybody ask me to do that case on a pro bono basis. Please!” If successful, such a challenge would require the redefinition of adultery or its abandonment as grounds for divorce.

The legal notion of adultery has been teetering on the brink for a generation. “It’s just a hold-over from an earlier period,” says Weinrib. “The reason that adultery is a fault ground [for divorce] is because there is the danger that a child is born in a marriage who is not the biological offspring of both partners.” Changing social values, not to mention paternity tests, have rendered that logic obsolete. Promiscuous queers may simply put the last nail in the coffin, as lawmakers view dropping the principle altogether as simpler than intricate (and socially awkward) revisions.

Such changes seem inevitable as queer families fall under the jurisdiction of laws conceived with only heterosexuals in mind. There is the risk of queer marriages being measured with a straight yardstick. “Law can sometimes be very rigid. There’s a very strong tendency for the law to treat everyone the same and to not recognize difference,” says David Rayside, a professor in the University of Toronto’s Sexual Diversity Studies Program. “Skeptics argue that this will shift a particular version of gay and lesbian culture to the margins. A white, middle-class, monogamous couple with children is going to be treated as more respectable than anyone who differs on any of those dimensions.”

Forcing courts to hear cases of same-sex divorce may be to the benefit of all couples that deviate from the norm. Using laws conceived for heterosexual marriages to judge those of queers will require family courts to put their most valued precept to test – that each case be judged on its own facts, all presumptions aside. Says Rayside, “There’s been some recognition in law, under the Charter, that treating people equitably sometimes means treating them differently.”

• Wiley Norvell is a Toronto-based writer.