Martha McCarthy honoured for gay rights litigation

Lawyer behind 'David and Goliath story' awarded Law Society Medal

A lesbian couple spends 10 years together and then they split up. In some ways, it’s nothing unusual. They have a business together and a cottage. When their relationship goes south, one of the women changes the locks on their house.

Their house? Her house.

The year is 1992. Gays and lesbians aren’t covered by the Family Law Act because the definition of “spouse” doesn’t include them. Therefore, the ex-girlfriend isn’t entitled to a share of the house.

>The disenfranchised half of the couple visits Martha McCarthy, a young family lawyer in her first year of practice. McCarthy agrees to take the case pro bono, not realizing that it will take eight years to wind up at the Supreme Court of Canada.

McCarthy and her client (known only by the initial M in court filings) won in 1999, and as a result, the federal and provincial governments introduced a raft of amendments to include same-sex couples in the definition of “spouse” – literally hundreds of laws had to be changed. It was probably the most ranging statutory revision to include gay people in Canadian history.

“In every way, that was a David and Goliath story,” McCarthy says now. “But we knew that the issue was ripe. We knew that family law was going to have to evolve, and we knew that it could be a leader in the field.”

While the case was winding its way through the courts, McCarthy swore up and down that it was not about gay marriage, she remembers. Then, a year after M’s case wrapped up, McCarthy was in an Ontario court again, arguing that Hedy Halpern and her girlfriend Colleen Rogers (and a number of other couples) should be allowed to get marriage licences after all.

Ten years after the first gay marriages were performed in Canada, and as the US Supreme Court ponders its own marriage laws, McCarthy was honoured with a Law Society Medal at a gala on May 29.

She says the hardest part, at the time, was appearing on a barrage of talk shows to debate family-values, “think of the children” conservatives.

“I did The National many times pitted against some religious-right guy. I used to get so upset. I couldn’t take it,” she says. “Gays and lesbians won the right to adopt in 1992. That ship had sailed. But that didn’t stop people from saying the most disgusting things about gay parenting.”

Her work continues. Last year, McCarthy brought to light court filings in which the federal government argued that some gay marriages celebrated in Canada were invalid. The case affects couples who came to Canada from abroad to get married here, because their home jurisdictions don’t allow gay marriage. The story exploded, and within hours the federal Conservatives announced they would introduce legislation to remedy the problem.


>McCarthy agreed to pause her court case until the Conservatives’ bill passed or was defeated – or until June 1, 2013, whichever came first.

“And guess what happened first?” she asks.

The bill – and a more robust version of it introduced by the NDP – stalled in the House of Commons, meaning it might be time for McCarthy to go back to court, again.

Marcus McCann

Marcus McCann is an employment and human rights lawyer, member of Queers Crash the Beat, and a part owner of Glad Day Bookshop. Before becoming a lawyer, he was the managing editor of Xtra in Toronto and Ottawa.

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