Updated below: I should retract my implication that this was a deliberate ploy by the federal government to re-open the same-sex marriage debate. It clearly is not, and was not any kind of political ploy — although at least one lawyer in the Justice department feels it should be. Original post:
Just when we thought the whole thing had been settled, Ottawa decides to toss their social conservative base a bone:
The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed.
The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married — a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.
The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.
This new development will certainly re-invigorate the debate about same-sex marriage — perhaps to head off a debate about polygamy (there are many Muslim families living in Canada with the husband having more than one wife, for example).
Update: Matt Gurney offers a more comprehensible account of the court case and the government’s response:
The legalities of the situation are complex. The unidentified couple, whose names are covered by a publication ban, returned to Canada to apply for a divorce after being married here seven years ago. They were not able to obtain said divorce because under the Divorce Act, applicants must be residents of Canada for at least 12 months. This couple does not, and seemingly never has, lived in Canada. They just chose to marry (and split up) here because it was not possible for them to do so in their home jurisdictions.
Uninterested in living in Canada for a year just to get divorced, the couple filed a Charter claim against the Ontario and federal governments, claiming that the residency requirement violated their Section 7 right to “life, liberty and security of the person” and their Section 15 right to equality under the law. These both seem to be spurious arguments — but rather than fight them on their own (lacking) merits, a government lawyer instead deployed this humdinger of a legal manoeuvre: They can’t get divorced because it turns out they were never married at all.
Done! Easy-peasy. Let’s break for lunch.
The government is arguing that since Florida and the U.K. — the home jurisdictions of the estranged couple — don’t recognize gay marriages, a gay marriage licence issued in Canada isn’t legally valid. People living in Canada, Canadian or otherwise, would have no problem, because Canada does recognize same-sex unions. But if your home country or state doesn’t, then the government has argued that a Canadian marriage has no standing in law. Weird, but true.
[. . .]
To be clear — the suggestion that these couples were never married under Canadian law, a suggestion advanced by a single government lawyer — is ridiculous. The notion that Canadian law should be dependent on the local laws of every single other jurisdiction on the planet is asinine. A government that has made so much of standing up for Canada’s values on the world stage has no business declaring our own laws subservient to any other land’s. We might not have the hard- or soft-power to give our laws much weight abroad, but we can at least honour them in our own country.
Update, 13 January: The government is actually responding quickly and correctly to the story:
Canada’s justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to.
“Marriages performed in Canada that aren’t recognized in couple’s home jurisdiction will be recognized in Canada,” Justice Minister Rob Nicholson said Friday in Toronto.
“I want to be very clear that our government has no intention of reopening the debate on the definition of marriage,” he added.
[. . .]
“I want to make it clear that in our government’s view, these marriages are valid,” Nicholson said.
[. . .]
The Harper government went immediately into damage control and denied that they were looking into the issue.
“We’re not going to reopen that particular issue,” Prime Minister Stephen Harper told reporters Thursday.
I can’t see how this is a political thing as it is in the courts. This one is really stupid too, I mean, how many folks ran to Canada to get married and then ran back home to a place where same sex marriages are not recognized? And somehow they thought this would change things in the eyes of the law? And why should Canadian courts now have to hear the divorce proceedings that will, in all likely hood, be challenged in the state where the people reside; especially if they don’t like the ruling in Canada. Another thing that the story does not relate, the divorce law was amended in 2009 to state that people had to reside in Canada for a year before they could file.
Lastly, does Canada recognize polygamy? As you state, if that is legal in another country, is Canada legally bound to recognize a union that it does not recognize as legal? If we don’t recognize that, then why would a state or country where same sex marriages are not legal have to deal with our decision too?
I have a feeling that the journalist has chose words that are not quite correct for the story. Perhaps there is something missing or omitted, on purpose or through ignorance, that is making this far more sinister than it really is. Although I have not seen it, I have read someone’s response that the Quebec government, back in 2004ish time frame, had a handout that informed the wedding vacationers that their same sex unions, though legal in Canada, would not be considered legal back home, and they should take that into consideration. I have not looked into this claim, but it makes sense to me.
Comment by Dwayne — January 12, 2012 @ 13:43
Apparently somewhere on the order of 5,000 couples so far.
Some of them, yes I think they did. Regardless of the actual details of the jurisdictions involved, most people assume that (for instance) Ontario or Nova Scotia will recognize a marriage solemnized in Nevada or Hawaii. The fact that Canada recognizes same-sex marriage and most other countries do not will not upset that unexamined assumption.
I was actually unaware of that change. But a matching change wasn’t made to require a year’s residence before marriage, was it?
You may be surprised to find that your municipal or regional social services are busily turning a blind eye to the number of Muslim families (usually calling them “single parent families”) where the husband is spending time visiting each of his spouses in several social housing units. It’s supported in fact, even if it’s not technically recognized in law.
If so, good on the Quebec government for making that an explicit warning to “marriage tourists”.
Comment by Nicholas — January 12, 2012 @ 15:08
I’m in a same-sex marriage. Every time we have sex, it’s the same.
Comment by Lickmuffin — January 12, 2012 @ 17:03
You may be surprised to find that your municipal or regional social services are busily turning a blind eye to the number of Muslim families (usually calling them “single parent families”) where the husband is spending time visiting each of his spouses in several social housing units. It’s supported in fact, even if it’s not technically recognized in law.
Turning a blind eye to something, and something actually legal, are not the same. And I would submit that if the media would spend a little time making this an issue most “normal” Canadians may become engaged and actually give a crap. I know that in the UK they are now starting to wake up and tell their government to start enforcing the rules. Of course, many are being called racists and bigots, but I could live with that if it would save the taxpayer some cash. Nothing worse than a thief in my books, any kind of thief at all, and these folks are stealing by making the claims they are making.
This all said, it is an interesting situation that does not change the fact that for Canadian same sex marriages nothing has changed. The media, being the total jackasses they tend to be, are blowing this up to something it isn’t, which is a change to the Canadian same sex marriage laws. The government has made it clear that Canadian same sex laws are not under siege or threat of change, the media is making sh*t up, as usual.
Comment by Dwayne — January 12, 2012 @ 19:23