P.+(S.E.)+c.+P.+(D.D.

//P. (S.E.) v. P. (D.D.), BC Supreme Court, 2005// __Facts__: Petition by wife for divorce from her husband on grounds of his admitted “adultery” with another man. __Issue__: What is definition of adultery? Does it include “homosexual adultery”? Can divorce be granted on ground of adultery in this case? __Decision__: Divorce granted on ground of husband’s adultery with another man. (NB: Judge could have granted the divorce without a court hearing (Rule 60(24) of the Rules of Court), as the husband did not defend the petition for divorce and the wife made no claim for corollary relief. However, the judge decided to have a hearing in order to decide whether “adultery” could include sexual relations between members of the same sex.) __Reasoning__: Under Divorce Act, 1967-68, s.3(b) homosexual act was ground for divorce. Divorce Act, 1985 removed this ground, and all fault grounds for divorce except adultery and cruelty, but does not define adultery. Since homosexual act was removed, and adultery was not defined, question remains whether adultery includes homosexual acts. Adultery has been defined on case-by-case basis by the courts. Judge holds that the Civil Marriage Act reflects the evolution of societal values, such that the purpose of marriage has shifted from procreation to “the forming of relationships characterized by emotional and economic interdependence”. Thus, he says he is “obliged” to use it as a guide to defining adultery – since same-sex marriage is allowed, same-sex spouses must be “bound by the same legal and social constraints against extra-marital sexual relationships that apply to heterosexual spouses”. Judge makes incremental change to definition of adultery based on principles of the Charter and Civil Marriage Act. Wrong for which wife seeks redress is “something akin to violation of the marital bond” regardless of whether sexual activity was heterosexual or homosexual. Judge does not find it necessary or desirable to define what type of intimate sexual activity constitutes adultery. Adultery, as defined in common law, “is not limited to sexual acts between persons of the opposite sex” and can include “sexual acts between a married person and a person other than the married person’s spouse of the same sex”. __Ratio__: Definition of adultery for the purpose of the Divorce Act, 1985 includes homosexual acts. __Notes from Class Discussion__: Changing entry rules to marriage does not automatically mean judges must update other marriage rules. There are bases for reservations and counter-arguments, so it’s important to think about them and imagine how this case could have gone another way. It’s not up to the court to update patriarchal norms, it’s the legislator’s job. Just modernizing every concept is not enough given centuries of baggage!