Not that anybody noticed apparently but, according to the Ontario Reports of 13 May 2005, the Ontario Superior Court of Justice last November agreed that the exclusion of same-sex couples from the definition in the Divorce Act was unconstitutional in the case M.M. v. J.H.. This was a month before the SSM case before the SCC, two steps higher than the OSCJ. At paragraphs 60 to 74, the Court notes helpfully in terms of granting the remedy it did:

[69] The legislature has the ultimate responsibility for enacting laws. These laws are subject, of course, to the Charter. In order to respect the role of the legislature, the court must discern the legislative objective of the impugned law. Here, the legislature felt the necessity to define the term "spouse" for the purposes of the Divorce Act...

[73] In Dunbar v. Yukon³¹, the court said the critical wording is to define who can marry, in the context of the definition of marriage. Here, the critical wording is who can divorce. If same-sex couples can marry, and only married spouses can divorce, then married spouses must be redefined to include same- sex married spouses.

[74] I am therefore persuaded that simply severing the definition of spouse would interfere more with Parliament's intent than redefining it by severing the unconstitutional words and reading in constitutional words. It is more deferential to Parliament to leave the definition in, and redefine it to make it constitutional. The simplest, clearest and most elegant way to do so is to change the definition to comply with the Charter, just as the courts have done to the common law definition of marriage.

So, just to be clear, a Canadian court has upheld the unconstitutionality of the statutory definition of spouse as being in breach of the Charter anti-discrimination provisions. No word if there was any appeal but it looks unlikely given the state of the news.