Harper gov't denies marriage to non-resident same-sex couples

Ok - I'm not a lawyer - and I'm trying to decipher media reports. I absolutely do not understand what position the government lawyers are alleged to have taken in this case.

Let me give an example and a question:

Diane and Chantal are U.S. citizens, living in Alabama. They fly to Canada in January 2006, get married, and take up residence here. They never return to the U.S. They acquire Canadian citizenship in 2011.

Question:

Are the government lawyers saying that they are not lawfully married?

Pardon my obtuseness, but I don't get what the media are saying.

ETA: Just heard Robert Leckey, President of Egale Canada, and professor of family law at McGill. He's concerned about this development, but didn't shed much light on it. He said it's been difficult to obtain the court documents - that the government's new policy (which he's not sure is actually a policy) isn't written down - etc.

Also, I'm wondering why this made the news now. This is from Hansard, October 6, 2011:

Quote:

Mr. Randall Garrison (Esquimalt-Juan de Fuca, NDP):

Mr. Speaker, in 2005 Canada made the historic decision to allow same-sex marriage. Unfortunately, the Conservatives are now trying to erode this right by intervening in an Ontario case to oppose recognition of a same-sex civil partnership from the U.K.

The Ontario government has agreed to recognize this partnership under Canadian law, but the Conservative government is opposing the guarantee of full protection of the law to this couple under the Divorce Act.

Why is the Minister of Justice intervening in this case to deny equal protection of the law for all same-sex couples?

Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC): Mr. Speaker, the hon. member has it wrong. We have been very clear that we are not reopening the issue, but it is a legal dispute over definitions.

As the matter is before the court, I look forward to the decision of the court.

Mr. Randall Garrison (Esquimalt-Juan de Fuca, NDP):

Mr. Speaker, the government knows full well it is intervening in the case, not standing back from the case. The government claims it does not want to reopen the same-sex marriage debate, but that is exactly what it is doing by disputing the definition of a civil partnership. Conservatives are saying straight couples who move to Canada have more rights than same-sex couples.

Will the minister agree to respect gay and lesbian rights and stop opposing full legal recognition of same-sex marriages and civil unions from other jurisdictions?

Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):

Mr. Speaker, we respect the rights of all individuals and we have been very clear about that. We have done nothing to reopen that debate. We respect the decision by Parliament, but it is a question of definitions, and that is being argued before the courts. We are intervenors, as are a number of other individuals and organizations, and I look forward to the court's decision.

And this: What is a "same-sex civil partnership"?? Is this a U.K. term? Is this the same court case, or a different one?

Waiting for more developments.

I'm guessing that the SCC will eventually tell the Government that their marriage argument is rubbish. The question of access to divorce may prove to be more problematic.

Link to government legal argument.  See pg 6.

http://www.documentcloud.org/documents/283173-l-and-m-answer.html

Unionist wrote:

pookie wrote:

ETA, Yes, as reported the govt's argument would indeed be stating that SSMs performed here to foreigners are invalid marriages (including HERE)  if their home states wouldn't recognize that marriage.

"Foreigners" meaning non-residents, right?

What if they are Canadian citizens resident in (say) Alabama for the past 20 years, get married (SSM) during a weekend visit to Toronto, then go home. Is the government lawyer(s) saying that it's the residency which determines whether Canada will recognize their marriage? Just trying to understand all this.

 

I was using "foreigner" to mean, non-Cdn non-residents.

Re: your hypo I'm not sure. The relationship between citizenship and domicile is tricky.  In that situation, it would seem to me that their Cdn citizenship would permit them to marry in Canada regardless of domicile.

The problem with all of this is that aside from the Civil Marriage Act enacted in 2004 we're relying on common law.  I find it hard to believe a Cdn court today would deny Cdns the right to get married here because of the marriage laws of their domicile.  These rules were originally devleoped to deal with comity issues between states so there wouldn't be a good reason to deny Cdn's the same right as other Cdns.

The lawyer for the couple is on CBC right now!

 ETA: she says this has become an international embarrassment for Canada in the past seven or eight hours, and is hoping cooler heads in government will prevail and deal with this appropriately.

(Going to court Feb 27/28 to get the marriage declared valid and see what happens next - not sure I got this right)

The couple's lawyer was hinting she's open to going to the Supreme Court, but has to abide by her client's wishes. I get the feeling she's relishing an opportunity to take on the government.

Canada has to update its civil marriage law to recognize gay unions for couples who live outside the country, Justice Minister Rob Nicholson said Friday.

The case arose out of a court filing where a federal lawyer said Canada couldn't grant a lesbian couple a divorce because they were never married in the first place. One woman lives in England and one in Florida. Neither jurisdiction recognizes same-sex marriage.

"I want to make it very clear that, in our government's view, these marriages should be valid. 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," he said in a statement.

http://www.cbc.ca/news/politics/story/2012/01/13/pol-same-sex-marriage-n...

Well, they could fiddle with the Divorce Act (removing or suspending the residency requirement - an otherwise reasonable requirement, but demonstrably not so in this case). One of the "rights and benefits" that accrue to being married is access to the courts in the unfortunate event the marriage breaks down in the hopes of gaining a fair/equitable division of assets etc. ... and that seems to be the problem here, that the right to access the courts to deal with marriage breakdown is being called into question, not the validity of the marriage itself.

I am, though, left wondering why anyone would assume that the courts in the jurisdictions these individuals opt to reside in are going to extend any more courtesy towards a divorce decree issued by a Canadian court than they do to a Canadian marriage licence or ceremony?

Wow this is a right wing government dictating the agenda as if they had a real majority.

Now I regret referring to the Harpers as neutered conservatives governing like they still have a minority with the NDP breathing down their necks even while pre-occupied with a leadership campaign.

Run for your lives!

at the risk of being banned for life, I'm copying an article here that gives a different point of view...I have no idea if this is valid or not

--

Imagine their shock to be told they could not divorce in Canada, either. Not only did they not meet the one-year residency condition required of all divorcing couples, gay or straight, but there was, according to the government’s filing, no marriage to dissolve: as their marriage was not legal in the jurisdictions in which they lived, neither was it legal here. The couple’s lawyer, Martha McCarthy, professed to find this position “astonishing,” not to say scandalous, offensive, appalling, outrageous and whatever other adjectives she could get her hands on.

Before long she was joined by a swelling chorus of indignation: on the Globe’s website, on Twitter, and from the ranks of the opposition, all of whom agreed the government was engaged in some sort of skullduggery. At best, it was attempting to export its social conservatism to other countries. At worst, it was allowing their social conservatism to dictate the law here.

You would never know from any of this that in fact there had been no change in policy: that the position advanced by the government lawyer was not new, but merely a statement of settled law. You would never know because neither the Globe nor anyone in the frothing mob it aroused bothered to ask a lawyer — other than the one contesting the case. Had they done so, they would have been told some version of the following:

Normally marriage law is relatively straightforward. Each country defines marriage for itself, and within its borders its citizens are bound by that definition. Where citizens of one country marry in another, however, responsibility is divided between the two, according to the set of common-law rules known as “conflict of laws.”

The “formal validity” of the marriage — that is, whether the vows were exchanged in the appropriate manner— is determined by the laws of the place where the marriage was performed. But the “essential validity” — that is, whether the couple were eligible to get married at all — is determined by the laws of each partner’s “ante-nuptial domicile,” the place they lived before they were married.

There’s no actual controversy on this point. It’s supported by reams of precedent. It’s not some invention of this government, or of Canada for that matter, but is part of the fabric of international law. Nor is it surprising: I’m basing this article in part on a piece by Jeffrey Talpis, professor of law at the University of Montreal, in the Lawyer’s Weekly of Sept. 22, 2006. It’s hard not to sympathize with those who were told when they came to Canada they were legally married. But the fault lies with those who misstated the law then, not those who correctly interpret it now.

Indeed, the surest proof that the government lawyer was right on this point is that you are reading about it. McCarthy knows the law as well as anyone. If she were confident of her position, she’d simply have won the argument in court. Instead, she took her case to the court of politics, with spectacular results: by the end of the day, the government was promising to change the law to permit all non-resident gay couples to divorce, followed by Friday’s “declaration” that the marriages were also legal, whatever the laws in their home countries might say.

Is this progress? Perhaps. While it’s a fine thing that Canada recognizes gay marriage for its own citizens, it remains of little practical importance to couples who, let us remember, live in other countries: the relevant laws are those in effect there, not here. And while it might be thought a blow for Canadian independence to say we will no longer acknowledge our “conflict of laws” obligations, we might find in time we wished we had. One of the reasons we accept other country’s laws, after all, is so that they will accept ours: for example, in the matter of gay marriage. Suppose a Canadian gay couple marries here, then moves abroad. Wouldn’t we want their host country to accept them as legally married?

There’s only one way to be sure of these things, however. If you want the benefit of Canadian law, it’s generally best to live on Canadian soil.

BillBC wrote:

at the risk of being banned for life, I'm copying an article here that gives a different point of view...I have no idea if this is valid or not.

I too have been nervous about commenting on the actual issue.

In fact, back years ago when the whole marriage tourism trend first started, large numbers of Ontario lawyers commented, many publicly, that this was a tenous business. First, their marriages would not be recognized in any American state at that time. (That came later.) When the first of these tourist marriages took place, they meant about as much, legally, as a souvenir photo in front of Niagara Falls. Sorry, but that's what lawyers commented at that time. Second, they weren't looking ahead to an eventual break-up, because the one-year-residency requirement meant that no Canadian court could "divorce" them, and their home state wouldn't either.

It's unfortunate how people think there is some universal validity in a marriage certificate. For example, occasionally a Canadian will fly to Las Vegas, get a "quickie Divorce" from someone in Las Vegas, re-marry in Las Vegas the same weekend, and come home thinking they are married. Of course Canadian courts will not recognize either the divorce or the marriage as valid.

That's why Martha McCarthy filed the case in the first place. She knew the problem perfectly.