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Topics In the News
Doubts Regarding Validity of Marriages Performed in Canada Resolved
Posted by: Claude J. Summers on 01/13/12
Last updated on: 01/14/12
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On January 12, 2012, a firestorm was set off by the revelation that a Canadian government lawyer had filed a document in a divorce case stating that same-sex marriages entered into by foreign couples who reside in jurisdictions that do not recognize same-sex marriage are not valid in Canada. The statement was at first widely regarded as an attempt to undermine same-sex marriage by the Conservative government of Prime Minister Stephen Harper. After the legal brief had been denounced roundly both in Canada and abroad, the government announced that it had no intention of reopening the question of same-sex marriage and that it recognized as valid the same-sex marriages of foreign nationals.

The divorce case was filed by a bi-national lesbian couple who wed in Canada in 2005, but were unable to divorce in either Florida or the U.K. where they live because neither jurisdiction recognizes their Canadian marriage. The couple seeks to be divorced in Canada even though they cannot fulfill the one-year residency requirement for a Canadian divorce. In opposing their suit, the government lawyer said that they were not legally wed even in Canada because the marriages of foreign nationals are only considered married if their marriages are also recognized in their home country or state.

The report on the filing by Toronto's Globe and Mail set off a firestorm of outrage and suspicion that the Conservative government was intent on attacking same-sex marriage.

It is estimated that at least 5000 foreign couples have been married in Canada since 2004. The government lawyer's contention that many of these marriages are not valid cast sudden doubt on the rights and legal status of these marriages and how that might affect such issues as tax status, employment benefits, and immigration.

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."

Freedom to Marry's Evan Wolfson described the Canadian government's argument a major embarrassment for Canada internationally. "One of the benefits that marriage gives to families is security and clarity," Wolfson said. "They don't have to deal with a tangle of uncertainty. If the Canadian government is serious about trying to cast doubt on people's marriages, it not only insults their dignity and hurts them personally, but it raises all sorts of complex legal and economic questions for everyone who deals with them--employers, businesses, banks, and on and on."

Dan Savage, who married his husband Terry Miller in British Columbia in 2005, blogged that "Canada's Conservative Government Turns My Husband Back into My Boyfriend.". "After issuing thousands of marriage licenses to same-sex couples from United States and other nations where same-sex marriage is not yet legal--marriage licenses that did not come with a disclaimer or an asterisk--Canada's conservative government has now decided that those marriages--marriages like mine--are not legally valid. Not even in Canada."

Several Canadian politicians immediately denounced the government filing and questioned whether the government was attempting to undermine same-sex marriage and Canada's position as a world leader in advocating for human rights.

Finally, Prime Minister Harper addressed the issue, saying that he was not familiar with the details of the case but that his government had no intention to reopen the debate about same-sex marriage.

In this clip, Prime Minister reacts to the controversy.

Meanwhile, glbtq legal organizations Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Freedom to Marry issued a joint statement reassuring American couples who have been married in Canada:

"No one's marriage has been invalidated or is likely to be invalidated. The position taken by one government lawyer in a divorce is not itself precedential. No court has accepted this view and there is no reason to believe that either Canada's courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada."

The groups' statement concluded, "The message for same-sex couples married in Canada remains the same as it is for same-sex couples validly married here in the United States: take every precaution you can to protect your relationship with legal documents such as powers of attorney and adoptions, as you may travel to jurisdictions that don't respect your legal relationship. There is no reason to suggest that Canadian marriages of same-sex couples are in jeopardy, or to advocate that people try to marry again elsewhere, as that could cause these couples unnecessary complications, anxiety, and expense."

By the afternoon of January 12, the Minister of Justice Rob Nicholson attempted to quell the outcry by issuing a statement saying that the government intended to clarify the law. "I will be looking at options to clarify the law so that such marriages performed in Canada can be undone in Canada."

On the morning of January 13, he told Canada's National Post that "We want to make it very clear that in our government's view, these marriages should be valid. 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.

"The confusion and the pain that is resulting from this gap is completely unfair to those who are affected, and I think we saw that yesterday in the coverage of these poor people who woke up to this news," he added.

While the brouhaha was entirely unnecessary, it is good that it has been resolved satisfactorily. Canada has emerged as a beacon of hope for glbtq people around the world, especially in countries where they are oppressed and persecuted. Any sign of a retreat by Canada in the area of human rights would be seen as very serious indeed.

Moreover, were the legal brief sustained, it would seriously damage Canadian marriage tourism as well as Canada's admirable image. The tourism agencies' attempts to lure same-sex couples to come to Canada to take advantage of the country's marriage laws would be seen as a bait-and-switch when the couples are told that even Canada does not recognize the marriages that they have licensed.

What is still not known is whether the brief filed by the government lawyer was simply the work of a rogue attorney in the Justice Ministry or a carefully considered ploy on the part of the ministry itself that had unforeseen consequences.

Here is how the story was reported on the CBC's National broadcast on January 13, 2012:

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