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Legal limbo for non-resident gays who married in Canada?

by on January 12th, 2012

The Globe and Mail is reporting that thousands of non-Canadian gay couples who flocked to Canada to get married, may not be legally wed after all. Why? Well, a federal government lawyer’s submission in a same-sex divorce case being heard in Toronto goes something like this:

– A legal wedding would require a one-year residency in Canada

– Same-sex marriages would only be legal if they were also legal in the home country or state of the couple wishing to marry

(Obviously, many who came from outside Canada to get married did so exactly because they could not be legally married where they lived.)

Canada’s court system effectively legalized same-sex marriage in 2004. Supporting legislation followed in 2005 with an estimated 15,000 same-sex marriages since then – fully one-third involving couples from the U.S. or other countries.

While hearing “Well, you never were married anyway” might be one solution for a couple seeking divorce, the abrupt shift falls like a bomb of indignation and uncertainty for gay-rights activists and the individuals involved.

Evan Wolfson, president of a New-York-based gay rights group, Freedom to Marry, said the federal position will be a major embarrassment for Canada internationally. He said it is too early to predict what effects the move may have on child custody, spousal support or asset division for estranged same-sex couples who were married in Canada.

“One of the benefits that marriage gives to families is security and clarity,” Mr. 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.”

Interested parties are still trying to grasp what this development may, or may not, mean. Speaking in Halifax today, Prime Minister Stephen Harper said “We have no intention of further re-opening or opening this issue”.

The Globe is holding a live web discussion on this topic at 12:30pm  today, with lawyer Martha McCarthy, who represents the same-sex couple at the center of this latest development.

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Correction and post-script to original post: There are no residency requirements for citizens or non-citizens to be married in Canada. Apparently, though, federal law requires residency of one year prior to seeking a divorce for a marriage performed in Canada.

The problem of “easy to marry / hard to divorce” for non-resident, non-Canadian couples who marry in Canada has been noted before. That legal gap is a non-secret, which has yet to be resolved.

However, asserting that same-sex couples must have been able to be legally married in their place of residence to be legally married in Canada – that is new, and raises all sorts of questions.

While this bears watching for interested parties, it does not represent an actual ruling or official policy. It is one submission, put forth by one federal lawyer, in one case that has yet to be ruled upon.

Here is what Martha McCarthy – the lawyer for the same-sex couple seeking the divorce – had to say in the Globe and Mail’s on-line discussion, held earlier today:

I agree 100% that there appears to be a misunderstanding out there that there has been a ruling or a decision. It is just their position right now. It could change (one can only hope), or be ruled upon by the Court in our favour. At the moment, though, I do understand the reaction the story has received since it is shocking that the government would take this position without ever telling anyone, arguing it, or dealing with it in any way, while non-residents have been getting married here for almost 8 years.

Columnist John Ibbitson takes a look at persistent suspicion that the ruling Conservatives are always looking for back-door ways to revisit social issues like same-sex marriage or abortion, even while Harper insists he seeks no such thing. Commenting in the National Post, Matt Gurney’s op-ed header is self-explanatory: If Harper wanted to go after gay marriage, he’d be smarter than this.

…taking a flawed, shortsighted legal manoeuvre by a government lawyer and reading an entire hidden agenda (or potential hidden agenda, who knows, Mr. Ibbitson might stress) into it says more about what people continue to expect from the Conservatives than anything the Tories have actually done.

Stephen Harper had hoped his day would be all about shipbuilding in Halifax and the next generation of Canadian naval vessels.

It will be interesting to see if the position taken by the individual government lawyer in the divorce case in question will be revised or retracted.

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