L and M Application (Amended)

0.66 MB·

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Pf-711-10-,163
Superior Court of Justice
Name of Court) Form BA: Application
1at. AM EiNibEti (Divorce)
393 University Ave., 10th Flee!, Tomato), ON M5G 1E6
(court office address) Simple (divorce only)
i Joint
Respondent(s)
Fug roper name & address for service— street & number, munfolPefk Linvyer's name & address — street & number municipality, postal code,
Pate code. teleisfrOne & fair numbers and a-msil address (t any), telephone & fax numbers and ff-mat address (If any).
Attorney General of Canada lAttorney General or Canada
-
Suite 3400 Exchange Tower
!Box 36, First Canadian Place
Toronto, Ontario
MSX 1K6
Fax: [phone]
rAnd
The Attorney General of Ontario
Attorney General or Ontario 'Constitutional Law Branch
Floor, 720 Bay Street
oronto, Ontario
MSG 2K 1
ax: 416-326-4015
O IN THIS CASE, THE APPLICANT IS CLAIMING DIVORCE ONLY.
TO THE RESPONDENT(S): A COURT CASE FOR DIVORCE HAS SEEN STARTED AGAINST YOU IN THIS
COURT. THE DETAILS ARE SET OUT ON THE ATTACHED PAGES.
THIS CASE IS ON THE STANDARD TRACK OF THE CASE MANAGEMENT SYSTEM. No court date has been set for
this case but, if you have been served with a notice of nation, it has a court date and you or your lawyer should come to court for the
motion. A case management judge will not be assigned until one of the parties asks the clerk of the court to schedule a case
conference or until a motion is scheduled. whichever comes first,
IF, AFTER 365 DAYS, THE CASE HAS NOT BEEN SCHEDULED FOR TRIAL, the clerk of the court will send out a wan-ring
that the case win be dismissed within 50 days unless the parties file proof that the case has been settled or one of the parties asks for
a case or a settlement conference.
IF YOU WANT TO OPPOSE ANY CLAIM N4 THIS CASE, you or your lawyer must prepare an Answer (Form 10 — a blank
copy should be attached), serve a copy on the applicant and f.4e a copy in the court office with an Affidavit of Service (Form 6B).
YOU HAVE ONLY 30 DAYS AFTER THIS APPLICATION IS SERVED ON YOU (60 DAYS IF THIS APPLICATION IS
SERVED ON YOU OUTSIDE CANADA OR THE UNITED STATES) TO SERVE AND FILE AN ANSWER. IF YOU DO
PLii SA (June 15, 2007)
wrn. DIVCOCEnversrin
Form BA: Application (Divorce) (page 2) Court File Number
AGAINST YOU.
IF YOU WANT TO MAKE A CLAIM OF YOUR OWN, you or your lawyer must fill out tire claim portion in the Answer, serve a
copy on the aPPliaint(s) and file a copy in the court office with an Affidavit of Service.
• If you want to make a claim for support but do not want to make a claim for property or exclusive possession of the matrimonial
home and its contents, you MUST NI out a Financial Statement (Form 13), serve a copy on the applicant(s) and file a copy in the
court office.
• However, if your only claim for support is for child Support in the table amount specified under the Child Support Guidelines, you
do not need to fill opt, serve or file a Financial Statement ' •
IP If you want to make a claim for properly or exclusive possession of the matrimonial home and its contents, whether or not it
includes a claim for support, you MUST fill out a Financial Statement (Form 13.1, not Form 13), serve a copy on the applicant(s).
and file a copy in the court office.
. .
YOU SHOULD GET LEGAL ADVICE ABOUT THIS CASE RIGHT AWAY. if you cannot afford a lawyer, you may be able to
get help from your local Legal Aid office. (See your telephone directory under LEGAL AID.)
THIS CASE 18 A JOINT APPUCAT/ON FOR DIVORCE. THE DETAILS ARE SET OUT ON THE ATrACHED
PAGES. The application and affidavits In support of the application will be presented to a judge when the materials have been
checked for completeness.
If you are requesting anything other than a simple 'divorce, such as support or property or exclusive possession of the
matrimonial home and its contents, then refer to page 1 for instructions regarding the Financial Statement you should file.
APR 0 5 2011
Date of Issu- -e Clerk t the court
Michelle Taddeo
Form 8A Application (Divorce) (Page 3) Court File Number
FAMILY HISTORY
APPLICANT: Age: 29 Birthdate: (4 m. 4111faria
Resident in (nurricipaffly prdvince) Florida, •Ultited Stales
Surname at birth: OW
Surname just before marriage: nfa 1, ^, • - 1,
Divorced before? ND 0 Yes (Piece and date of previous divorce)
JOINT APPLICANT:
41111111111.111111,
Age: 32 Birtfidate! (d. m,
Resident in (munkOalify & province) London. England
since (date)
smanwir
Surname at birth:
Surname just before marriage: ri/a
Divorced before? No 0 Yes (Peace and date g.tf previous divorce)
13
RELATIONSHIP DATES
THE CHILD(REN)
ListI I cltildreninvolved in this case. even if no claim is made for these children.
— -I-- --1—_ —Birth c—laY — 7 — —R —esi d—ent i—n — — N—ewrivi—ng ‘Th — —1I
Pull legal urea Age (name of petson and
• (cl rn, ji) (muntipakty & province) relationsh0 to chilc2
...t=._.._ ,..... — — — I-- — -- —
1
-- —L — — — -- — I— — — — — --
PREVIOUS CASES OR AGREEMENTS
Have the parties or the children been in a court case before?
a D
No yes
Have the parties made a written agreement dealing with any matter involved in this case?
a
No El Yes (Give date of agreement. Indicate which a its Rents are in dispute.)
Appilcation (Divorce) (page 4) Court File Number
Form SA:
CLAIMS
USE THIS FRAME ONLY IF THIS . CASE IS A JOINT APPLICATION FOR DIVORCE_
WE JOINTLY ASK THE COURT FOR THE FOLLOWING:
Claims under the Divorce Act Claim* under the Family Law Act Claims relating to property
or Children's Law Reform Act
00 0 a divorte 10 0 spousal support 20 equalization of net
family properties
01 spousal support 11 Ej . support for child(ran) - table 21 0 exclusive possession of
amount matrimonial home
02 support for child(ren) - table 12 support tar child(ren) - other 22 0 exclusive possession of
amount than table amount contents of matrimonial home
03 0 support for child(ren) - other 13 custody of child(ren) 23 0 freezing assets
than table amount
0 D
04 custody of orrildlren) 14 arefge to child(ren) 24 0 sale of family property
05 D access to chki(ren) 15 0 restraining/non-harassment
order Other Claims
16 0 indexing spousal support
a
17 declaration of Parentage 30 costs
18 0 guardianship over child's 31 El annulment of marriage
property•;• •
32 Ei prejudgment interest
other (Specify.)
USE THIS FRAME ONLY IF THE APPLICANT'S ONLY CLAIM IN THIS CASE IS FOR DIVORCE.
I ASK THE COURT FOR:
(Check it .appricable.)
00 a divorce 3D Ej costs
.E...•nn••••••••nn n•
IMPORTANT FACTS SUPPORTING THE CLAIM FOR DIVORCE
Separation: The spouses have lived separate and apart since (dare) Murch t, 2009 arid
131 have not lived together again since that data in an unsuccessful attempt to recoricite.
have lived together again diaittg the following period(s) in an unsuccessful attempt to reconcile:
(Give dates.)
Adultery: (Name of spouse)
has committed adultery. (Give debits, IF is not neressan, to name any other person ilWayett Ns if you do name the other
person, then you must serve this application on the other person.)
0
Cruelty: (Name of spouse)
has treated Maine of spouse)
with phoical or mental cruelty of such a kind as to make continued cohabitation intolerable.. (Sive cleta0e.)
Form 8A: Application (Divorce) (page 5) Court Fite Number
USE THIS FRAME ONLY IF THIS CASE IS A JOINT APPLICAnON FOR DIVORCE.
The details of the other order(s) that we jointly ask the court to make are as follows: (WW2 any eminent' o f support and the -
names of the children for whom support, custody or access is lobe ordered.)
) . An order for divorce, pursuant to the Farms patritie jurisdiction inherent to the Ontario Superior Court
of Justice and the Divorce Act, 1985. c. 3;
2. In the alternative to 1, a declaration that the one year residency requirement to obtain a divorce in
Canada. pursuant to the definition of ''divorce proceeding" in ss. 2(1) and 3(1) of the Divorce Act, S.C.
1985. e. 3. is constitutionally invalid only with respect to the Joint Applicants because it discriminates
against them in its application on the basis of sex, sexual orientation, and residency contrary to s. 15(1)
of the Canadian Charter of Rightx and FITOdOMS in a manner not justified in a free and democratic
society pursuant to s. 1 of the Charier; or
3, A declaration that the one year residency requirement to obtain a divorce in Canada, pursuant to the
definition of "divorce proceeding" in ss. 20) and 3(1) of the Divorce Act,, S.(' , 1985. c. 3. is
constitutionally invalid only with respect to the Joint Applicants. because it violates the Join(
Applicants' rights to life. liberty and security of the person in a manner that is unfair and .
disproportionate to any government interest, contrary to s. 7 of the Charrer and not justified by s. I of,
the Charter: and
4. A constitutional exemption granting the Joint Applicants leave to apply for a divorce in the Ontario
Superior Court of Justice immediately so that the violation does not persist; or
5 In the alternative, a declaration that the One year residency requirement to obtain a divorce in Canada,
pursuant to the definition of "divorce proceeding" in a. 2(1) and 3(3) of the Dieorce AC1, S.C. 1985, c.
3, is of no force and effect as it infringes the equality rights of the Joint Applicants in its application, by
discriminating against them on the basis or sex. sexual orientation, and residency contrary [Os. i ) of
the Canadian charier of 1?ights and Freedoms in a manner not justified in a free and democratic society
pursuant 10 S. t ofthcChurrer
6. In the further alternative, a declaration that the one year residency requirement to obtain a divorce in
Canada. pursuant to the definition of "divorce proceeding" in section 2(1) and section 3(1) of the
Divorce Act. S.C. 1985, c. 3, is of no force and effect as it is arbitrary, unfair and disproportionate to
any
government interest and violates the Joint Applicant spouses' right to life. liberty, and security of the
person, contrary to s. 7 of the Canadian Charter 11 Rights and ,Preedams ina manner not justified in a
Form SA: Application (Divorce) (page 6) Court File Number PS-I 1-367893
free and democratic society pursuant to s. 1 of the Charter;
7. In the event of a suspension of the declaration of invalidity as sought in paragraphs 5 and/or 6 above, the
Joint Applicants seek a constitutional exemption with an order granting them leave to file an application
for divorce in the Ontario Superior Court of Justice immediately; and
8. An order bifurcating the issues in this matter, such that the relief sought in paragraph I proceeds firs( by
motion, and the balance ()I' the relief proceeds only if that motion does not succeed; and see attached
mgclA
9. Costs on a full recovery basis; and
10.Such further and other relief as this Honourable Court deems just.
IMPORTANT FACTS SUPPORTING OUR CLAIM(S)
(Set out the facts that form the legal basis for your clainOR.
Theory of the Case
11.The Joint Applicants are a same-sex couple who were married in Canada (the "Canadian Marriage") but
reside separately in the Unites States and the United Kingdom. The Joint Applicants seek to legally
dissolve their marriage on consent so that each Applicant may move forward with her life.
12.The Canadian Marriage is not recognized by the state of Florida. in the United Kingdom, civil
partnerships are granted to same-sex couples, but the Canadian marriage is not recognized.
13.The Joint Applicants are unable to obtain a divorce in their home jurisdictions. Further, they are barred
from seeking a divorce in Ontario because they do not meet the one year residency requirement
mandated by the joint operation of ss_ 2(1) and 3(1) of the Divorce Act, S.C. 1985, c. 3.
14.As the Supreme Court of Canada has noted, the freedom to live life with the mate of one's choice and in
the manner of ono's choice is a matter of defining importance to individuals. Marriage is an intensely
persona/ decision that engages a complex set of social, political, religious and financial considerations. it
is a basic Ci0MCIli of social organizations around the world. Its relevance flows, in large part, from the
incalculable value placed on public recognition of the marital relationship.
Miron 7rudt-1,119951 2 S.C.R. 418 at para. 161
Walsh v. BOW, 12002] 4 S.C.R. 326 Eti pant, 43
Halpern v. Canada (Attorney General) (2003). 65 O.K. (3d) 161 at para. 5 (C.A.)
Court File Number FS- 11-367893
Form 8A: Application (Divorce) (page OA)
USE THIS FRAME ONLY IF THIS CASE IS A JOINT APPLICATION FOR DIVORCE.
8A. A declaration that the Joint Anpiicants Marriage Certificate bearing registration number
issued by the Province of Ontario for the r_rattme dated December 30. 2005, is a lewdly valid and binding
ocument: and
813. A temporary or interim Order reAuiring the Attorney General of Ontario to produce the following:
(a) The Marriage Licence Application form submitted by the Joint Annlicants
(b) The entire file relating to the Marriage License and Marriage Certificate hearing registration number
11111111Orssuecl to the Joint Applionts by the Province oiOntario;
(c) All documents includin electronic *„.L1 k ii or ui.ared b the Provi of Ontario re din
policies and procedures with respect to applications for Marriage Licences by non-resident same-sex
couples. and any information provided to such couples explaining the practice and policies of the
Province of Ontario;
(d) All statistical information obtained, received by, or in the possession of the Province of Ontario
relating to the number of non-residents who have entered into same-sex marriages in Ontario and/or
Canada since June 10, 2003; and
Is 8 A temporary or interim Order renuiring the Attorney General of Canada tnproduce the following
(a) All statistical information obtained. received by or in the possession of the Government of Canada
•tt
relating to the number of non-residents who have entered into same-sex marriages in Ontario and/or
Canada since June 10, 2003; and
81). An Order for Questioning of the Attorney General'of Canada, or his representative: and
8E. An Order for Questioning_of the Attorney General of Ontario. or-his representative: and
8P In the event that th i A licants' marti e is determ to be invalid at law eneral and ill
ages in the amount of $30,000 for negligent misrepresentation by the Province of Ontario, as more
cificallv described:in this Application: and
Form 8A: Application (Divorce) (page 7) Court File Number FS-_117367893
15. The same is true with respect to the institution of divorce. IL too, is a central component of the freedom
to live life with the mate or one's choice. It, too, is an intensely personal decision that engages a
complex set of social, political, religious and financial considerations. IL, too, is now considered a basic
clement of social organizations around the world, Its relevance, too, flows from the incalculable value
placed on public recognition of the marital relationship.
16, The Joint Applicants cannot get divorced in any jurisdiction. They are prevented from severing the legal
and psychological bonds of marriage in a way that other couples routinely take for granted.
17.The Joint Applicants ask the court to invoke its parens patriae jurisdiction and order that they be
allowed to seek a divorce in the province of Ontario.
18.in the alternative. the Joint Applicants seek a declaration that their Marriage Certificate bearipg
_reg i nr um.. etA111111..ja a valid and bindinj legal do rm de tnhtat the one year residency
requirement to obtain a divorce in Canada, pursuant to the definition of "divorce proceeding- in ss, 2(1)
and 3(1) of the Diroree .40, S.C. 1985, c. 3, is constitutionally invalid only with respect to them as a
discreet group. because it discriminates against them in its application on the basis of sex, sexual
orientation, and residency contrary to s. 15(1) of the Charter and violates their rights to life, liberty and
security or the person contrary to s, 7 of the Charier. The Joint Applicants submit that these violations
are felt exclusively by them as non-resident same-sex couples married in Canada, and that they cannot
be saved by s, 1 of the Charier. They seek a constitutional exemption granting them leave to file a joint
application for divorce in the Ontario Superior Court of Justice immediately.
Essential Facts about the Joint Applicants
awAimmir
19, A, Nallillairnd began dating in 2001 and were married in Toronto.
Ontario on December 30. 2005. See oaEe 7A,
lir
20v.larives
and works inaillarlorida in the area of early childhood education. works
in buSiness development for a large company in London. England, where she also lives. \Wand
1111110separated on or about March 1, 2009 and have no children or outstanding corollary issues
resulting from the breakdown of their marriage.
21. has been with the same employer for nearly I/ years working as a pre-school teacher, and she
has deep roots in the Clearwater community. 1.1111ras worked for the same company since 2002.
Unfortunately, her company does not have any international offices and so transferring to a Canadian
location is not possible. Given the difficult economic times, both parties arc sceptical that they could
nnnn•n••
19B. . Tbe Joint Applicants travell0 to Toronto in 20t_/5_ f or t e, si ecific se of ettin married. ' 11 w
3 issued a Marriage License by the Province of Ontario and, subsequent to the marriaac, a Marriage Certificate
bearinit the reg i_s rat )_tr_n2...LmkellillikB a . marria e the Joint A_pplicants relied on t
. ,
words and actions of the provincial government that the Marriage License and Marriage Certificate issued to
them were valid. Al no time were they advised by either the provincial or federal overmnents that their
marriage was not valid. in addition to the emotional distress caused to the Joint Applicants, they specifically
incurred legal and travel costs associated with a marriage that was promoted by the provincial and federal
which is now being denied,
governments and
Form 8A: Application (Divorce) (page 8) . Court File Number
find adequate employment in C'anada.
21.The state of Florida does not recognize the Joint Applicants marriage, and will not grant them a
divonx. Although the United Kingdom grants civil partnerships to same-sex couples, it will nOt
recognize the Canadian marriage and thus will not grant a divorce.
22v.ailand 1 ire married. They want, and are entitled to, a divorce. Even if the United Kingdom
was prepared to dissolve the union as a civil partnership, it is unfair to place all of the responsibility with
Nil.
Either party should be able to initiate and participate in her own divorce proceedings.
23.Neither imprnor Lewd able to move to a new country, alone and isolated, to engage in the
already lonely and isolating process of obtaining a divorce. MOW a close relationship with her
family, all of whom reside close to her Clearwater home. IIIIIIrparents live within fifteen minutes of
home; this is especially important as her father's health is currently deteriorating and she has no
her
siblings to assist her with his care.
24I.mmornd soiricred and believed that Canada. the country that married them, would afford them
the respect and dignity to legally end their marriage. Without this. they cannot move on from this
chapter in their lives. The fact that they Continue to be connected by the legal institution of marriage
impinges their ability to pursue new relationships and to feel comfortable doing so. Ft* instance,
amp.
although the United Kingdom will not grantL divorce. her marriage to prevent her
from entering into a civil partnership in England.
v and Allee
25.White cooperating on this Joint Application, the breakdown of their marriage
has been painful and will continue to be until they are able to be formally released by divorce.
The Importance of this Case
26.The Joint Applicants, individually and as a couple. made the intensely personal decision to get married.
They chose to be married in Canada because it is one of the only countries in the world that recognizes
the importance of this decision for same-sex couples, irrespective of where they live.
27.The Joint Applicants, individually and as a couple, made the intensely personal decision to get divorced.
Unfortunately, no country in the world recognizes the importance of this decision for same-sex couples,
irrespective of where they live.