Earlier this year I was retained by a woman in Nevada who, like many others, took advantage of Canada’s same-sex marriage laws. Vivian and her same-sex partner were married in Whistler, British Columbia in 2004, returning to their home state of Nevada, where both were accomplished professional women.
Along the way, Vivian’s partner adopted two children to whom Vivian played an equal mothering role during their marriage. Regrettably, their relationship broke down and Vivian quickly realized that she had no “legal” status with regards to her partner’s children, a most discomforting reality considering the equal role she had played in the children’s lives.
At the time of the separation of Vivian and her partner, same-sex marriage was not legal in Nevada and neither was there any legal provision for same-sex divorce.(Note:same-sex marriage is now legal in Nevada)
In August of 2013 the Canadian government became aware that many same-sex couples who married in Canada could not be divorced in their home countries, and so, a law was quickly passed that enabled same-sex couples to apply for a divorce in Canada in cases where both parties consented, or where a judge of the home country made an order that one of the parties was unreasonably withholding their consent.
Several months later Vivian was shocked when she received a copy of a divorce order made by a Justice of the Supreme Court of British Columbia in Vancouver. She had not been notified that a divorce proceeding had been initiated and completed in Vancouver.
The pronouncement of a divorce was significant with respect to Vivian’s chances of maintaining a parental role with the children and as well, sadly, her ex-partner was terminally ill, which had serious ramifications with respect to estate matters.
Would Vivian become a widow or was she a divorcee, with no legal rights?
It was about this time that Vivian retained me to assist her to determine how her partner was able to obtain a divorce order in Vancouver with no notice to her.
The divorce file in the Vancouver courthouse told the story. Vivian’s ex had filed the proper paperwork, which included a court order from the Las Vegas Justice Court, pronounced by Judge Melanie Andress-Tobiasson. This order declared that Vivian had unreasonably withheld her consent to a divorce. The problem was that Vivian was never informed, notified, or served with any divorce application.
Instead her ex-partner, who happened to be a lawyer in Las Vegas, appeared before Judge Andress-Tobiasson with no application, no motion, no paperwork of any kind, and obtained the order she sought. More significantly, the judge had no jurisdiction over family law cases!
Vivian contacted the Chief Justice of the Nevada Court who immediately voided the Nevada order and also ensured the order was declared void back to the time the Vancouver court made the divorce order.
Nonetheless, the divorce order is still in effect until a hearing can be set down in Vancouver to expose the unethical process and persuade the judge who made the divorce order to rescind it.
In the meantime, Vivian’s ex-partner died, and Vivian is now in court in Las Vegas battling for access to the two children, who are in the primary care of her ex’s new partner.
Judge Gloria O’Malley, presiding over the custody hearing, referred to the divorce debacle saying:
“The order was problematic in numerous respects…The Court is not comfortable with the process used to obtain the ex parte order from Justice Court…there was no due process to Vivian. She didn’t have an opportunity to be heard. She didn’t have an opportunity to present her position”.
Judge Andress-Tobiasson is being sued personally in federal court by Vivian for civil rights violations. As for “judicial immunity”, because the judge had no jurisdiction to make the order, arguably she cannot avail herself of the immunity protection.
It is also likely that judicial discipline proceedings may follow.
Vivian believes that “a huge favour was called in. It’s classic cronyism, corruption, and a back-room deal”. I agree with her, and thought this kind of justice only occurred in countries like Russia and Zimbabwe!
Lawdiva aka Georgialee Lang