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McLachlin spoke most for top court

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CRISTIN SCHMITZ

Justices Marshall Rothstein
and Louise Charron were the
core members of most of the
Supreme Court majorities in
2011, but Chief Justice Beverley
McLachlin wrote more law for
the court than anyone, a Lawyers
Weekly analysis discloses.

The examination of the Supreme Court’s voting patterns and written output in 2011 reveals that the nine judges cranked out

64 judgments, but spoke with one
voice in only 36 of them. In the
other 28 cases, there were dis-
sents or concurrences diverging
from the majority’s reasoning.

This means the court issued unanimous reasons in just 56 per cent of its judgments in 2011. That compares with 67 per cent in 2010.

However, the court did have a

72 per cent unanimity rate on
results in 2011—agreeing on the
outcomes of 46 cases. This was
consistent with the average 73
per cent annual unanimity rate
that has prevailed under Chief
Justice McLachlin’s leadership
for the past decade.

Although the chief justice has laboured at the court for nearly

See Analysis Page 9

Feds fading in face of furor THE LAWYERS WEEKLY

Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002

PAGE 11

CRISTIN SCHMITZ

NORWICH ORDERS

A Charter challenge aiming to pave the way for foreign domiciled same-sex couples who married here to obtain Canadian divorces has opened up a can of legal worms, says a family law expert.

However, the federal government’s rapid about-face on Jan. 13 in L. and M. v. A.G. Canada and A.G. Ontario also illustrates that, sometimes, the court of public opinion is the highest court in the land.

“Not all cases have to be fought out in the courtroom,” remarked Toronto family law practitioner Martha McCarthy, who represents a married lesbian couple who live abroad and have filed jointly for divorce in Canada.

“I think that Kirk Makin’s arti-
cle [about the case in The Globe
and Mail Jan. 12] was instru-
mental in changing the govern-
ment policy and therefore, hope-
fully, leading to a total resolution
of my [clients’] case.”
She said she was contacted by
the newspaper, and not the
other way around. “There was
not some deep strategy in my
office about that—that’s not
how it happened. My reaction
when the [federal Crown’s]
pleading was served was: ‘This
is a horrible mistake and, if and
when the press gets a hold of
this, this is not going to go well
for the government.’ ”
L. and M. were married in
Toronto in 2005. They turned to
Ontario’s Superior Court last year
to dissolve their union because
they reside separately in Britain
and Florida, where they can’t
divorce because neither jurisdic-
tion recognizes their marriage.
As part of their test case, the
pair is seeking a constitutional
exemption from the one-year
Canadian residency requirement
in the Divorce Act because they
claim it imposes undue hardship
on them and violates their Char-
ter sections 7 and 15 rights to
liberty and equality.
They were shocked, however,
when the federal government
responded to their application by
stating that the Ontario court
couldn’t divorce them because
they were never really married in
the first place. If true, this would
also apply to the thousands of
foreign same-sex partners who
have flocked to Canada to marry.
McCarthy condemns as
“unsavoury and inflammatory”
the argument that other experts
have said is consistent with well-
established principles of private
international law. The federal
Crown argued that same-sex
couples who married in Canada,
but who are domiciled in places
where same-sex marriage is not
legally recognized, “are not legally
married under Canadian law.”
Its legal position prompted
headlines, and outraged reac-
tions from gays and lesbians,
around the world.
Within hours of the story’s pub-
lication, Justice Minister Rob
Nicholson began backpedaling.
He went further the next day, stat-
ing: “We want to make it very clear
that, in our government’s view,
these marriages should be valid.”
He went on to vow that “we
will change the Civil Marriage
Act so that any marriages per-
formed in Canada that aren’t rec-
ognized in the couple’s home
jurisdiction will be recognized in
Canada. This will apply to all
marriages performed in Canada.”
Nicholson’s spokeswoman,
Julie Vaux, told The Lawyers
Weekly that the minister “will be
looking at options to clarify the
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Martha McCarthy, a Toronto lawyer for a non-resident lesbian couple whose divorce application has turned into a test case, said she is waiting to see how the situation evolves when Parliament resumes at the end of January.

Brigitte Bouvier for the Lawyers weekLy

See Test Page 9

THE LAWYERS WEEKLY

VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002 VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002

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