Nevada Media Tells Tale of Vancouver Same-Sex Divorce Debacle

GEO CASUAL Television station KLAS Las Vegas featured a story last evening that told of a “divorce debacle” in our British Columbia Supreme Court.

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

Same-Sex Marriage is Sweeping America

Barrister While Canada was way ahead of most countries in legalizing same-sex marriage, the United States languished, but is now quickly catching up.

You may remember several years ago when actor and certifiable “hunk” Brad Pitt said that he and Angelina Jolie would not marry until same-sex couples in America had the right to do so. The most recent news from the Pitt/Jolie camp is that their wedding ceremony in Hawaii is set for December 2013, followed by an extravagant winter reception at their French manor.

Not entirely surprising, since same-sex marriage is legally recognized in numerous jurisdictions within the United States and is recognized by the federal government for such purposes as taxation and immigration.

As of October 2013, fourteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Washington), the District of Columbia, several counties in New Mexico, and seven Native American tribal jurisdictions – covering 33% of the US population – issue marriage licenses for same-sex couples.

Oregon recognizes same-sex marriages performed in other states and the issue is being litigated in a New Mexico Supreme Court case, where officials are seeking a ruling of statewide applicability.

Meanwhile, six states now recognize “domestic partnerships” including Oregon, Wisconsin, Hawaii, Colorado, Nevada and Illinois.

A new day has dawned and best wishes go to the engaged couple!

Lawdiva aka Georgialee Lang

First, Same-Sex Marriage – Now, Same-Sex Divorce

GEO#1In 2004 Canada took its place as the first country in the world to grant a divorce to a same-sex couple. This was not surprising since Canada was one of the first countries to legalize same-sex marriage, an event that saw hundreds of gay and lesbian couples from around the world travel to Canada to celebrate their relationships with a legal marriage ceremony.

Many American couples married in Canada or in one of the dozen American states that permitted same-sex marriage.

At the time no one gave a moment’s thought to the inevitable time when these marriages, like their heterosexual counterparts, would disintegrate and divorce would be on the agenda.

While same-sex marriage is a hot topic among American legislators, same-sex couples who married north of the border found that divorcing their spouses was not an easy proposition.

Toronto family law lawyer Martha McCarthy became the first lawyer in Canada to tackle the same-sex divorce dilemma when her clients encountered a problem created by Canada’s Divorce Act, which had not been amended to address the influx of marriages involving non-resident visitors.

The Divorce Act requires that one of the spouses reside in Canada for one year prior to the granting of a divorce, a requirement that is almost impossible for a non-resident to comply with.

Ms. McCarthy brought a Charter of Rights and Freedoms challenge to the Ontario courts, an application that was moot once the federal government enacted the Civil Marriage Act in the summer of 2013. The legislation permits a same-sex couple to apply for a divorce in the Province where they married without a residency requirement, if they reside in a jurisdiction that does not permit same-sex divorce.

Additionally, each of the spouses must consent to the granting of a divorce, unless circumstances prevent such consent and then a court order waiving consent is required, either from a Canadian court, or the court where the couple resided during their marriage.

Will there be a proliferation of same-sex divorces? In the last two weeks I have initiated three same-sex divorce applications, all from American couples who married in British Columbia, but live in states where their marriage was never recognized.

Others say that because many same-sex couples merely legalized their domestic unions after years of living together, they are more likely able to sustain their marriages.

Meanwhile, Lauren Czekala-Chatham, who married her same-sex partner in California in
2008, has brought a legal challenge against the government of Mississippi, where she and her partner lived during their two-year marriage, protesting her inability to obtain a divorce in her home state.

Lawdiva aka Georgialee Lang

Media Misunderstands Same-Sex Divorce Issue

Was there anyone naive enough not to realize that same-sex marriage would surely bring with it other legal complexities? Certainly, the first issue that came to my mind was “how do these couples get divorced?”

That question was initially answered in 2004 by a judge in Toronto who refused to grant a divorce to a lesbian couple on the basis that the Divorce Act only applied to spouses who were defined in the Divorce Act as either a man or a woman married to each other. The Canadian couple in question had married on June 18, 2003 but separated five days later, having lived together for 10 years before their nuptials.

Later in 2004 a higher Ontario court overruled the earlier decision and pronounced the first same-sex divorce in Canada and in the world.

The Court held that the definition of spouse in the Divorce Act was unconstitutional and discriminatory and ruled that the legislation must be read to include same-sex couples.

Fast forward to the most recent same-sex divorce dilemma which unfolded in Ontario this week. You may recall the influx of gays and lesbians to Canada to exchange marriage vows after same-sex marriage was legalized.

One of those couples recently sought a Canadian divorce in Ontario. The couple, who live in Florida and England, were met by an argument brought by lawyers from the Department of Justice, that their marriage was not valid in Canada unless it was also valid in Florida and England. Of course, we know that neither Florida or England have legalized same-sex marriage.

Their reaction? You’re telling us this now! But there was still more. Canada’s Divorce Act requires one of the spouses to reside in Canada for one year prior to the granting of a divorce. This would also be tricky for couples who only came to Canada to marry and never contemplated a year of residence in Canada to obtain a divorce.

The barrage of questions posed by the media swarm included whether the Department of Justice’s legal argument reflected government policy and had this policy been surreptitiously changed by the government to thwart the rights of foreign couples who married under Canada’s same-sex marriage laws?

Interesting questions but not the right ones to ask. The answer to the Department of Justice’s legal position is found in a complicated area of law referred to as “conflicts of law”, where rules involving foreign jurisdictions, foreign law and foreign litigants have been formulated to assist in resolving the thorny issues raised by inter-jurisdictional legal questions.

The short answer is that the legal position espoused by the Department of Justice has nothing to do with policy and everything to do with well-settled international law.

It should have been apparent to foreign couples marrying in Canada that their marriages were fraught with problems. The dismay expressed by the media and critics of the Harper government over this non-issue reinforces the notion that a little legal knowledge is a dangerous thing.

Lawdiva aka Georgialee Lang

Newt Gingrich Really Wants to Change Government Starting With Judiciary

Lagging in the Republican presidential race, candidate Newt Gingrich’s recent remarks about the judiciary can only be seen as a play for press.

Gingrich’s recent stump speeches include an admonition that if he was President he would “instruct the national security officials to ignore the Supreme Court on issues of national security.” His startling proposition leads inexorably to the possibility that as potential leader of the Executive branch of government he could also decide to ignore the Legislative branch, a step that would surely lead to anarchy.

Gingrich focuses on several recent court cases including the California court’s decision to overturn the results of Proposition 8, the “definition of marriage” referendum wherein eight million Californians voted against same-sex marriage.

He also highlights the “prayer” decision of federal Judge Biery of Texas who blocked a prayer at Medina Valley High School graduation ceremonies. Judge Biery cited a shopping list of court decisions that struck down religious activities, like prayer, for breaching the First Amendment which promises freedom of religion, speech, the press and the right to lawful assembly.

Judge Biery’s four-page Reasons include orders striking the words “Invocation” and “Benediction” from the ceremony program, to be replaced by “Opening Remarks” and “Closing Remarks”. Besides banning the prayer, the Court ruled that the words “prayer” and “amen” could not be mentioned, although a speaker could state his or her own personal beliefs so long as they were not proselytizing.

A higher Court overturned this decision, a perfect illustration of how the judicial branch operates.

On a recent “Face the Nation” appearance, Gingrich suggested that federal judges be subpoenaed to explain their decisions and remarked that subpoenas may have a “sobering effect on judges’ assessment of their powers”. To suggest that the United States abandon the rule of law and the independence of its judiciary is to turn judges into “puppets” of the government, joining countries like Russia, Iran and others whose systems of justice are rife with corruption.

He also articulated his response to stubborn judges: “All right, in the future the Court can meet, but it will have no clerks. By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law libraries either.”

Mr. Gingrich’s inflammatory proposals to change the function of the judiciary advances governance based on political preferences and denies the role of an independent bench as part of the constitutional balance of America.

No, he’s not kidding!

Lawdiva aka Georgialee Lang