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Back to Section One | Back to Arts & Entertainment
posted Friday, January 20, 2012 - Volume 40 Issue 03
Canada backs off challenge to marriages of foreign couples
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Canada backs off challenge to marriages of foreign couples

by Mike Andrew - SGN Staff Writer

Less than a week after a Canadian government lawyer provoked an international controversy by challenging the validity of some 5,000 marriages of foreign same-sex couples, Canada finally clarified the situation: all same-sex marriages performed in Canada are valid and always were.

Canadian Justice Minister Rob Nicholson issued a statement on January 13 that reversed the government's earlier position that same-sex marriages performed in Canada are legal only if they would also be legal in the home country of the marriage partners.

'I want to make it clear that, in my government's view, those marriages should be valid,' Nicholson said in a statement to the Globe and Mail newspaper.

Nicholson also promised to revise his country's marriage laws to remove any doubt as to the validity of all same-sex marriages performed by Canadian officials.

'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,' Nicholson promised.

The controversy erupted as a byproduct of a divorce trial in Toronto. A Lesbian couple - one British, one a resident of Florida - who had been married in Canada, returned to the country to get divorced.

Canadian Justice Department lawyer Sean Gaudet told the court that the couple could not be divorced in Canada because they were never legally married there. The marriage would be legal in Canada only if it were legal in the U.K. and Florida, which it wasn't, Gaudet said.

Former Prime Minister Paul Martin, whose Liberal government passed the law legalizing same-sex marriages in Canada, called the government's position in the Toronto divorce case 'absolutely ridiculous.'

'We validated those marriages and you cannot retroactively invalidate marriages that you validated,' Martin said in a Globe and Mail interview.

Nicholson, a Conservative, blamed Martin's Liberals for any confusion in the law.

'This is a legislative gap left by the Liberal government of the day when the law was changed in 2005,' Nicholson said. 'The confusion and pain resulting from this gap, in my opinion, is completely unfair to those who are affected.'

Liberal leader Bob Rae vehemently rejected the Nicholson's claim that the Liberals were at fault.

'The only gap is the gap between the heads of Conservative cabinet ministers who have failed to live up to the best and finest traditions of Canada with respect to our traditions of tolerance,' Rae said.

Kathleen Lahey, a law professor at Queen's University in Kingston, Ontario, said that the government lawyer appeared to be relying on an outdated interpretation of private international law.

The argument that marriages of foreign nationals are valid only if they are also valid in the home countries of the couple is an archaic, centuries-old doctrine, Lahey said.

It was drafted during a time when 'there was a great deal of discrimination surrounding the whole concept of marriage - who could marry whom, [like] whether Catholic marriages were valid or whether they had to be Church of England marriages.

'I think it is an invalid legal argument,' said Lahey. 'I think it should never have been submitted to the court.'

Of the 15,000 same-sex marriages performed in Canada since 2005, some 5,000 are reportedly foreign couples.

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