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"Each individual should allow reason to guide his conduct, or like an animal, he will need to be led by a leash."
Diogenes of Sinope


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University of Guelph - Guelph, Ontario

Thursday, January 12, 2012

Gay marriage meltdown in Ottawa

I hesitate to weigh in on the gay marriage "controversy" now raging in Ottawa because the left is going absolutely apoplectic about it, but it needs to be pointed out that this is not an issue about gay marriage, but about gay divorce, and the legal facts are getting lost in the wailing and gnashing of teeth.

The Globe and Mail breathlessly reported today that the Harper government had made an "about face" on the issue of gay marriage and was arguing in Federal Court that gay couples from foreign jurisdictions where same-sex marriage is not legal cannot be legally wed in Canada:
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.

But speaking in Halifax Thursday, the Prime Minister said the issue was not on the agenda for his majority Conservatives. “We have no intention of further re-opening or opening this issue,” Stephen Harper told reporters when asked about The Globe and Mail’s report.

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.
First of all, let's look at the plaintiffs in this case, who were married in Canada but live in Florida and the UK. Florida does not recognize gay marriage, and the UK has civil partnerships for gay couples but not marriage. It seems self-evident to me that the "rights and legal status" of a Canadian marriage as outlined in Canadian law apply only if you live in Canada. Canada has no power to extend rights to non-citizens who are resident in a foreign jurisdiction that does not recognize the legality of their union. If a foreign couple from such a country wants legal recognition of their married status, they have to live in Canada.

Secondly, the couple is seeking a divorce in Canada, not a marriage. The Federal Divorce Act is crystal clear on who can divorce in this country:
3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
The goverment's hands are tied; they cannot hear a divorce case for a foreign same-sex couple (or a heterosexual couple, for that matter) unless at least one spouse has lived in the country for one year. This fact was pointed out to gay couples who flocked to Canada to get married when it became legal to do so here - in fact the CBC warned gay couples of the potential difficulty back in 2009:
Some same-sex couples from the U.S. who got married in Canada are running into trouble getting divorces, according to an Oregon lawyer.
Gay couples have been flocking to cities like Vancouver with its large gay community since same-sex marriage was first legalized in the summer of 2003.

Several of those couples have since approached Oregon lawyer Beth Allen looking for a divorce, but Oregon doesn't recognize gay marriage, or divorce, so they can't get a divorce there, she said.

As well, a residency requirement in Canada's Divorce Act requires one of the two married people to live in this country for a year before a divorce can be granted, and those U.S. states which recognize gay marriage also have residency requirements for divorce.

The news almost always comes as a shock for the couples, Allen told CBC New on Friday morning.

"It's really a horror story for those who went up there hoping for a lifetime of happiness, wanting to break up, and having an extra layer of trouble on that dissolution," said Allen.

Rain Henderson, a Vancouver lawyer and expert on matrimonial law, says marriage application forms should include a new warning for same-sex couples.

"It just talks about you can't marry your uncle, your aunt, your brother or sister kind of thing. It doesn't say be cautious, because you might not be able to get divorced," she said.

Henderson has this advice for gay Americans looking to marry here: "I would say not to do it, because it is, at this point in time, such a procedural bar."
The truth is that same-sex Canadian marriages are NOT legally valid - if you live in a foreign jurisdiction that does not recognize gay marriage. This was true under the previous Liberal regime and is still true today. The Canadian government cannot compel sovereign foreign nations to recognize Canadian laws no matter how enlightened they may be.

The legend of Harper's "Hidden Agenda" refuses to die, though, and clowns like Bob Rae and Olivia Chow are doing back flips to point out that the Tories are now trying to turn back the clock on gay marriage. As reported by the Toronto Star, Rae sanctimoniously intoned that
Harper’s Conservative government was making a move to gut same-sex marriage rights 'by stealth'
and Chow stated that
the Harper government was using a “back door way” to deny the marriages of thousands of gay couples who married in Canada and live abroad in states hostile to gay marriage.
US advice columnist and gay rights advocate Dan Savage fears that his own marriage is in jeopardy and that
If same-sex marriage isn’t legal for foreigners in Canada, if our marriages aren’t valid in Canada, it’s possible that this move by Harper’s government means that couples like us — same-sex couples from WA (Washington state) who married in Canada — are no longer domestic partners under the law here in Washington state. What a headache.
Take a tour through the comments in the Globe and Mail if you have the stomach for it. Here's one example:
What did you expect from Mr. Harper, the right-wing extremist and reactionary!! If he could, he would probably make homosexuality illegal and put women back into the kitchen (you know the old German saying that a woman's domain are "Kinder, K├╝che, Kirche" (children, kitchen, church). Harper and his so-called conservatives are more akin to the Fascists of 1930s Germany and Italy. They are certainly not interested in democracy, but in heavy-handedly imposing their views and philosophy on others, their constituents. They are also much too much influenced by the American Right, and will likely do anything to get and remain in their good graces.
I hate to spoil a good hate-fest, but the hysterical left is way off base on this one. Harper was apparently unaware of the case now before the courts, and he and Justice Minister Nicholson immediately clarified the Government's position:
Stephen Harper said it was news to him and muttered he was not interested in re-opening the gay marriage debate.
Later Thursday, Nicholson released a written statement to clarify the government “has no intention of reopening the debate on the definition of marriage.”

“I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”
That's it, folks - show's over. Everyone move along now. No one is trying to make anyone's marriages retroactively illegal, and in fact the government is now apparently going to make divorce easier. That doesn't sound much like a hidden agenda to me, but I'll be the first person to admit it if I'm proven wrong.

UPDATE: In the January 13 National Post:
A clever lawyer, not a hidden agenda
Same-sex union issue 'closed'

FURTHER UPDATE:
Andrew Coyne - "Shoddy reporting and cheap politics create a phony crisis":
You would never know from any of this that in fact there had been no change in policy: that the position advanced by the government lawyer was not new, but merely a statement of settled law. You would never know because neither the Globe nor anyone in the frothing mob it aroused bothered to ask a lawyer — other than the one contesting the case. Had they done so, they would have been told some version of the following:

Normally marriage law is relatively straightforward. Each country defines marriage for itself, and within its borders its citizens are bound by that definition. Where citizens of one country marry in another, however, responsibility is divided between the two, according to the set of common-law rules known as “conflict of laws.”

The “formal validity” of the marriage — that is, whether the vows were exchanged in the appropriate manner— is determined by the laws of the place where the marriage was performed. But the “essential validity” — that is, whether the couple were eligible to get married at all — is determined by the laws of each partner’s “ante-nuptial domicile,” the place they lived before they were married.

There’s no actual controversy on this point. It’s supported by reams of precedent. It’s not some invention of this government, or of Canada for that matter, but is part of the fabric of international law. Nor is it surprising: I’m basing this article in part on a piece by Jeffrey Talpis, professor of law at the University of Montreal, in the Lawyer’s Weekly of Sept. 22, 2006. It’s hard not to sympathize with those who were told when they came to Canada they were legally married. But the fault lies with those who misstated the law then, not those who correctly interpret it now.

STILL FURTHER UPDATE:
Jan. 14 editorial from the National Post: Hidden agenda hysterics:
So why the nervous breakdown? The most charitable answer is that Canada's left is genuinely fearful of an erosion of gay rights in this country. But these people can't all be that dumb. What's more probable is that most of them know the Tories have no desire to revisit the gay marriage issue, and are merely clinging to the notion that the Conservatives are homophobes to score political points.

It won't work, though. Both Paul Martin and Michael Ignatieff, when they led the Liberals, tried repeatedly to sow fears of Tory plans to ban abortions, revive capital punishment and discriminate against gays. None of it happened, and Canadians have shown an admirable resistance to being duped by such baseless claims. The Harper government's alleged homophobia is a cynical, slow-news-day media invention, and casts far more discredit on the government's hysterical critics than the government itself.

17 comments:

Anonymous said...

Actually this will be a huge victory for our side you watch. We'll come out as the reasonable ones here fixing the problem and saving gay marriage or whatever and the Libdippers and the LSM will come out looking like liars and fools. Over to you Bob and Olivia.

Pissedoff said...

That's the problem with the lefty idiots they think they can force Canada's laws onto other countries. It was up to all those who came flocking here to find out what their legal status would be in their own country.

maryT said...

The g&m should have googled international divorce law re ss couples. And it has long been the law in Canada that to divorce at least one of the spouses had to live in Canada for the previous 10 months. If ssm is not recognized in your home country, and you marry in Canada, you are not married and can't get divorced. Same rules for straight and ss couples. Blame it on Cotlier for writing the law that the Martin govt passed. He goofed, not the current PM. This is a gotcha moment that will backfire if the media tells the truth.
Who is the lawyer that thought he could get rich and famous for taking this case. If one of those spouses live in Florida and the other in the UK, seems like said marriage was over years ago. They just want to scam taxpayers out of 30,000, most of which would go to said lawyer.

Pissedoff said...

It makes me laugh that Chow Chow is shouting her big mouth off. Try going to China and telling them you are gay and married and expect to be treated normally.

As for the Whine and Snail I haven't seen anywhere that Harper is stopping ss marriage, it is up to the couple to make sure they understand all the laws from all countries involved.

The_Iceman said...

Excellent post! In all the hype and media coverage today, I did not hear anyone mention that foreign same sex couples have the same problem. Well done.

cantuc said...

wh'd a thunk it ? Harpers hidden ageenda . Killing same sex divorce . If only we'd known .

Jay said...

It is very disingenuous to say that because Florida does not recognize the marriage, then it is invalid. The point is not whether Florida recognizes the marriage, but whether Canada recognizes marriages performed in Canada by nonresidents. The government is saying that it does not. That seems to me to say that the government is guilty of fraud. You cannot hand out marriage licenses, collect a fee for it, even advertise abroad to get people to come to Canada and marry, then add in very fine print: sorry, your marriage is not valid if it isn't recognized in your home state.

You are correct that Canada cannot enforce marriage laws in Florida, but the government is trying to deny the validity of its marriage license in Toronto, where it damn well can enforce marriage laws.

maryT said...

If the ss couple had stayed in Canada then their marriage would be recognized and they could divorce. It is up to couples who marry in other countries to know the rules re recognition and divorce. Check out Internation Law re divorce and you will find the answers.

Eric said...

Jay:

The government can damn well enforce its marriage laws in Toronto only if the couple lives in Ontario. No one is questioning the validity of their marriage here, but they don't LIVE here.

The government lawyer's argument was that only valid marriages can be dissolved under the Divorce Act, and that since there is a residency requirement for divorce in Canada which the couple does not meet, and the state of Florida will not grant them a divorce, it is not a valid marriage because the Canadian courts have no jurisdiction over it. That's the hard truth and it has been the case since gay marriage was legalized in 2005.

It's unfortunate that these people are stuck in this legal loophole, but legal experts warned years ago that this was going to happen. It is not evidence of some Conservative conspiracy to take away the rights of gay people.

Anonymous said...

Yes DB, that comment is pretty typical for the Globe&Mail and it probably received 600 "thumbs-up". Who has the stomach, indeed. I think you are right: this is all about the $$$ and/or publicity for the lawyer. Don't forget that 30K would set a precedent that will mean 30K for each marriage. We are talking about tens of millions. Who wouldn't want a piece of that?

JohnnyD

Jay said...

Eric, you are missing the point. The point is not that the government lawyer said that the couple's marriage is not valid in Florida. The couple knows that. That is why they came to Canada to marry, and why they want to come to Canada to divorce. The uproar is over the fact that the government lawyer said that their marriage is not valid BECAUSE they live in Florida. He could have simply said that Canadian law requires a year-long residency in order to divorce. That is not what he said. He said that their marriage is invalid. By extension, all the marriages of foreign nationals who live in places that do not recognize same-sex marriage are invalid. Whether this was an attempt by the Harper government to attack same-sex marriage or not, it would have a genuine effect on people who have married in Canada who suddenly discover that even Canada does not recognize their marriage. It will also have a drastic effect on Canadian marriage tourism, which will of course decline in any case as more US states permit same-sex marriage. It looks like the uproar has had a desirable effect and that the government will withdraw the offensive statement and possibly even introduce legislation to make divorce easier for foreign nationals who were married in Canada but whose local authorities do not recognize their marriages.

Jay said...

One more thing, I just saw this story in the National Post:

"OTTAWA — The Harper government is working quickly to change the law so that the marriages of the thousands of gay couples who travel to Canada to wed are legally recognized in this country.

“We want to make it very clear that in our government’s view, these marriages should be valid,” a senior government official told Postmedia News on Friday.

“That’s why we will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.”

The legislative change will apply to all marriages performed in Canada regardless of the laws of the jurisdiction in which the couple live, the official said."


Please note that the issue is whether the marriages will be recognized in CANADA, not whether they are recognized in Florida.

Eric said...

Jay:

I understand your point, but I guess the debate hinges around the use of the word "valid". Foreign couples married in Canada DO have valid marriages - but only if they live in Canada or in a jurisdiction that recognizes same-sex Canadian marriages. If the couple doesn't live in Canada and got married knowing that there was a Canadian residency requirement for getting a divorce, then how can anyone be surprised that Canada is powerless to recognize their union as equal to that of Canadian residents?

Don't get me wrong - I sympathize with the couple in question and hope the government changes the rules to help them out, but they should have seen this coming, and their legal difficulties are not symptomatic of latent anti-gay sentiments on the part of the Conservative government.

Jay said...

I am glad that the government is going to do the right thing. I suspect that if there had not been the outrage that has threatened the image of Canada, they would not have retreated from the untenable position they staked out in the brief the government attorney filed. That position is, as the attorney for the lesbian couple said, "scandalous. The lawyer for the couple, Toronto attorney Martha McCarthy, characterized the government's legal filing as "scandalous. It is offensive to [her clients'] dignity and human rights to suggest they weren't married or that they have something that is a nullity. It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it," she said. "All the while, they were handing out licenses to perform marriages across the country to non-resident people."

One might say that it was the couple's responsibility to note that there might be a difficulty in getting a divorce, but what the government said went way beyond that. It said that the marriage had never been valid even in Canada. That is what the uproar was about. No wonder people were suspicious that this was an attempt by a right-wing government to undermine same-sex marriage.

Apparently, it was simply a rogue government employee who is responsible for the uproar.

In any case, the outrage has led to what seems to be a happy resolution. We will see if the government follows through on its promise.

See the blog on the incident at glbtq.com: http://www.glbtq.com/blogs/doubts_regarding_validity_of_marriages_performed_in_canada_to_be_resolved.html

Eric said...

Jay: I'll concede your point that the lawyer was arguing that the marriages would not be valid in Canada. I don't agree that this move on the part of the Justice Dept. was "scandalous" - dumb or ham-handed, maybe. And I don't think it is indicative of the government's agenda, hidden or otherwise, as the Justice Minister's subsequent statements indicate.

Anyway, I'm glad it turned out well in the end.

Thanks for commenting.

Jay said...

Eric, I suspect if a government lawyer told you that your marriage is invalid, you might find it scandalous. What I want to know is whether the lawyer was a zealot acting on his own or part of a team that came up with this "ham-handed" strategy. I don't know, but I would think that government lawyers have to have their brief's approved by senior officials in the Justice ministry, which probably means that someone high up in the Ministry knew what was being argued. You can be certain that if there had not been the outrage and uproar that greeted such an argument, the government would not have retreated so quickly and so completely.

zeppo said...

@Jay

What the government lawyer was arguing (the law of domicle) is settled international law. The legality of the marriage compact is determined by the place of domicile, not the place of formalization.

The provincial government formalizes the marriage in Canada, not the federal government, so it is/was the provincial government's responsibility to inform the couple of the law of domicile.

Same sex marriages are legal and binding where both the jurisdiction of formalization (i.e. Ontario) and the jurisdiction of domicile both recognize the form of the marriage.

Other examples of limitations on marriage not related to gender are:
number of spouses, age, consanguinity, affinity.

If the jurisdiction of domicile does not recognize the marriage due to the above limitations but Canada does (i.e. perhaps the foreign jurisdiction has tighter restrictions on consanguinity) then Canada cannot provide a divorce because the marriage is not recognized as valid, even if performed here.

Other questions arise: What if a Canadian court orders a specific property or child custody and support settlement? What happens if one of the parties to the litigation, who resides in a foreign domicile, does not perform on their obligations under the court order? How will the court order be enforced in the foreign domicile?

All I can say is: no matter what happens the lawyers are making money.