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Canada seeks to reassure gay couples that marriages are not in jeopardy

Thursday, January 12, 2012
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OTTAWA, Ontario, Canada — The Canadian Minister Of Justice, Rob Nicholson, on Thursday afternoon announced that the Canadian government will re-work the current marriage law to allow non-resident couples married in Canada to obtain divorces, and in a statement said, “I want to be very clear that the government has no intention of reopening the debate on the definition of marriage.”

The statement comes in response to a controversy that erupted earlier in the day in what appeared to be a reversal of the Canadian marriage law, revealed in legal filing in a Ontario court brought by a lesbian couple seeking a divorce.

Legally wed in 2005 under the statue in Toronto, the couple were informed they cannot seek or obtain a divorce because an opinion by a Canadian Department of Justice lawyer stated their marriage is not legal under Canadian law since they could not have lawfully wed in Florida or England, where the two partners reside.

The attorney had taken a legal position that same-sex marriages involving non-residents are invalid – and cannot be dissolved – unless they are recognized as legitimate in the couple’s home country.

His opinion quickly sparked confusion in the United States and overseas by same-sex couples who worried that their marriages performed in Canada would no longer be valid.

Speaking to reporters from an event in North Vancouver, B.C. on Thursday afternoon, Canada’s Tory Prime Minister Stephen Harper said, “We’re not going to reopen that particular issue. This is a complicated case and the minister of justice, I think, has put out a statement clarifying the government’s position on that.”

“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,” Harper said.

The Globe and Mail reported that former Prime Minister Paul Martin, who brought in the law allowing gay and lesbian couples to legally marry, called the government’s position in the Toronto divorce case is “absolutely ridiculous.”

“We validated those marriages and you cannot retroactively invalidate marriages that you validated,” Martin said.

The federal position is based on two central propositions. First, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the couple’s home country of state.

Legal experts and politicians are seriously at odds over how residency requirements ought to apply to foreigners who were not warned that they might be unable to divorce.

Gay activists warned Thursday that their formidable lobby will mobilize to fight any attempt by the Harper government to push back hard-won rights.

“Have thousands of same-sex couples been misled by Canadian officials for nearly eight years?” said Helen Kennedy, executive director of the gay rights group, Egale Canada.

It also emerged that the Toronto case was the second time in the past year that Justice Department lawyers have intervened to raise obstacles in a same-sex divorce case.

Several months ago, it launched a legal intervention in the case of a Canadian man, Wayne Hincks, and his partner, who had obtained the status of a civil partnership in Britain.

The Crown contended that a civil partnership obtained in Britain is not equal to marriage under Canada’s Divorce Act – notwithstanding the fact that Britain considers a civil partnership tantamount to marriage.

Speaking on the condition of anonymity, one official with the Canadian Department of Justice told LGBTQ Nation Thursday evening that the problem stems from the fact that there were no divorce provisions built into the law, nor were there clarifications that should allow for same-sex marriage in a more definitive sense for non-residents, thus creating what amounts to a legal anomaly.

Back in the U.S., LGBT advocacy groups sought to reassure the estimated 5,000 couples in the U.S. and abroad that their marriages were not in danger of being invalidated.

The following joint statement was released by the National Center for Lesbian Rights, Lambda Legal, the American Civil Liberties Union (ACLU), and Gay & Lesbian Advocates & Defenders (GLAD):

We write to respond to a news report from Canada that a lawyer in the current government has taken a position in a trial-level divorce proceeding that a same-sex couple’s marriage is not valid because the members of the couple were not Canada residents at the time that they married, and the law of their home jurisdiction did not permit them to marry at the time.

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.

Canada permits non-residents to marry and thousands of non-resident same-sex couples have married there since Canada first began recognizing the freedom to marry for same-sex couples in 2003. Indeed, Canada’s Parliament codified the equal right to marry for same-sex couples in 2005.

Notwithstanding, the groups advised all legally married same-sex couples, whether married in Canada or in the U.S., to “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.”

Update:

The Canadian government “has quelled a growing controversy with a declaration that all same-sex marriages performed in Canada are legal,” reported The Globe & Mail, Canada’s national newspaper, on Friday.

In Ottawa, Justice Minister Rob Nicholson issued a statement Friday that reversed the department’s earlier legal opinion that same-sex marriages performed in Canada were legal only if they are accepted as such in the home nation of the same-sex marriage couples.”

According to the paper, Nicholson announced that a “legislative gap” that caused the confusion will be closed.

“The confusion and pain resulting from this gap is completely unfair to those who are affected,” Nicholson said. “I want to make it clear that, in the government’s view, those marriages are legal.”

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