Oh, Canada!: Canadian government may invalidate marriages of 5,000 foreign couples
 

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posted Friday, January 13, 2012 - Volume 40 Issue 02

Oh, Canada!: Canadian government may invalidate marriages of 5,000 foreign couples
by Mike Andrew - SGN Staff Writer

A Canadian government attorney has indicated that Canada's federal government does not recognize the marriages of foreign same-sex couples wed in Canada.

Foreign couples reportedly account for about 5,000 of the 15,000 same-sex marriages performed in Canada since marriage equality took effect in 2005.

Canadian Department of Justice lawyer Sean Gaudet stated what The Globe and Mail newspaper characterized as a 'reversal of federal policy' in a brief filed in a Toronto divorce case.

Canadian Prime Minister Stephen Harper denied that his government wanted to reverse policy on same-sex marriages however.

'We have no intention of further re-opening or opening this issue,' Harper told reporters when asked about The Globe and Mail report.

'In terms of the specifics of the story this morning, I will admit to you that I am not aware of the details,' Harper added. 'This, I gather, is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking officials to provide me more details'

A Lesbian couple - one British and one a resident of Florida - married in Toronto in 2005. They do not reside in Canada, but returned there to seek a divorce because they cannot divorce in either Britain or Florida.

Gaudet claimed - on behalf of the Canadian government - that they cannot divorce in Canada either, because they were never legally married under Canadian law.

Same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple, Gaudet said.

'In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles - Florida and the United Kingdom,' Gaudet stated. 'As a result, their marriage is not legally valid under Canadian law.'

'They returned home with marriage certificates.'
The identity of the women seeking divorce is currently protected by court order.

Martha McCarthy, a prominent Toronto lawyer who represents them, called the government's position 'scandalous' and 'offensive.' McCarthy played an instrumental role in the fight to legalize same-sex marriage in Canada.

'It is scandalous,' she said of the Canadian government position. 'It is offensive to their dignity and human rights to suggest they weren't married or that they have something that is a nullity.'

'They returned home with marriage certificates that they got on their wedding day showing everybody they were legally married,' she continued. 'They gave them to their employers, their benefits people, and all kinds of other third parties. And Canada participated in that.'

McCarthy added that the Ontario provincial government has tried to duck a controversial test case by deferring to Canada's federal government.

'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.'

What is the law?
While McCarthy says that Canadian law has, until now, authorized marriages of foreign same-sex couples, Gaudet claims their rights are limited by the laws in their places of residence.

If Gaudet is correct, 5,000 couples have gone to Canada to be married under a serious misconception. Even worse, they were encouraged by information from Canadian government sources.

The website of the City of Toronto, where the couple in the divorce case were married, says unequivocally 'There are no citizenship or residency requirements when applying for a marriage license in Ontario [province].'

The divorce application of the Toronto couple also states very clearly that they were never told the validity of their marriage might be problematic.

'At no time were they advised by either the provincial or federal governments that their marriage was not valid,' the application states. 'In addition to the emotional distress caused to the joint applicants, they specifically incurred legal and travel costs associated with a marriage that was promoted by the provincial and federal governments, and which is now being denied.'

A joint statement from five U.S. legal organizations said that Gaudet's brief was not, in itself, legally significant. Lambda Legal, the NCLR, the ACLU, GLAD, and Freedom to Marry issued the statement in response 'to a news report from Canada.'

'No one's marriage has been invalidated or is likely to be invalidated,' the joint statement said.

'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.'

On the other hand, some legal scholars have always warned that Canada may restrict marriages of foreign nationals.

Writing for the American Society of International Law in 2003, in the wake of an important Ontario court decision addressing the rights of same-sex couples, law professor Ralf Michaels of Duke University predicted that Canada might refuse to marry same-sex couples who enter the country only to marry.

'For recognition purposes, Canadian law so far has looked to the partners' domicile to determine their capacity to get married. If sexual orientation is considered an issue for capacity (as the Court of Appeal of Ontario explicitly says in its decision), there is a real possibility that Canadian officials will eventually refuse to marry Americans who come into the country only to get married,' Michaels wrote.

'Most legislative models in the world restrict access in order to avoid marriage tourism (and the possible implications for international relations),' he continued. 'The Dutch legislation, for example, opens marriage to foreign couples only if one partner is Dutch or at least a resident in the Netherlands.'

And significantly for the Toronto divorce case, 'Belgium will only marry foreigners that come from jurisdictions that allow for same-sex partnerships.'

A major embarrassment for Canada
If Gaudet is, in fact, speaking for the Canadian government, the new policy threatens to transform Canada from an international beacon for the rights of Gays and Lesbians to a nation that discriminates against them, McCarthy said.

Freedom to Marry president Evan Wolfson said the Canadian government's position will be a major embarrassment for Canada internationally. 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, he added.

'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.'



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