Friday, January 13, 2012

Gay marriage brouhaha

The current word-storm in the media over the status of same-sex marriage in Canada doesn’t raise much concern at my house. Seems to me, our legal system and marriage law is intended for residents of Canada and should not be overly concerned about those who use it to circumvent marriage laws in their own countries.

Canadian couples cannot dissolve their marriages (divorce) without satisfying Canadian residency rules—currently 12 months for at least one spouse. Similar residency rules apply in most North American jurisdictions, though, I am not certain what the rules are in Quebec. Lack of residency rules in Nevada is frequently the reason some Americans go to Las Vegas for so-called “quickie” divorces.

But here we go again with one more example of a specific community wanting special consideration under our laws. A lesbian couple, who do not live in Canada, want our laws changed to suit their circumstances. Well tough!

Apparently, the couple got married in Canada when same-sex marriages were not recognized in their home jurisdictions, Florida and the United Kingdom. So, as I see it, they came to Canada to circumvent their countries’ own laws. And now they want Canada to turn itself into a quickie divorce jurisdiction to suit their lifestyle. Why, then, should I—or any other Canadian—waste any sympathy on these people?

I see no reason to eliminate Canadian residency rules to make it possible for foreigners to obtain divorces in Canada. No reason at all.

While we’re at it, same-sex marriage in Canada is in no way under threat. It is there now, and will continue to be there in the future, for Canadian residents who want to make use of it. And shame on the media members who have irresponsibly reported on this issue in a way that frightens those gay/lesbian Canadian residents who have been married here.

And CBC and CTV news channels, many in the media at large and in the gay/lesbian community should be ashamed of themselves for such callous and completely unfair criticism of Prime Minister Stephen Harper over this silly tempest in a teapot.

Copyright © 2012 Russell G. Campbell. All Rights Reserved.


  1. There are three issues here:

    1. "I see no reason to eliminate Canadian residency rules to make it possible for foreigners to obtain divorces in Canada. No reason at all."

    Totally agree. The application from this former couple is likely to lose and it should. There are very good reasons for deferring to the domicile jurisdiction in settling a divorce. They didn't think those through and they are caught in a legal jurisdictional conflict. It's unfortunate but it really isn't our problem... entirely (see #3.).

    But that is not what caused the firestorm yesterday.

    2. The controversial issue is that the Harper Government has filed a paper in this court case claiming that the marriage was not valid. They aren't claiming merely that they don't have jurisdiction to grant a divorce because of lack of residency as required under Section 3 of the Divorce Act.

    No, the Harper Government claims that, because of some foreign country's laws (which don't recognize equal marriage), the Canadian marriage is invalid ab initio (from the beginning). That makes absolutely no sense whatsoever. So much so that one can only conclude that it was either gross incompetence by the Harper Government for not understanding basic laws or some attempt at chipping away at equal marriage.

    I actually believe it is more the former than the latter. I do think this is one of those types of issues Harper doesn't want to grapple with.

    3. There is a third issue here and it is broader than just equal marriage but also not as important as the other two. What happens when you have conflicting marriage and divorce laws and how do you deal with that equitably.

    Imagine a mixed religion couple gets married in Canada legally, moves to Saudi Arabia for business reasons and then try to get a divorce. Saudi Arabia says they can't grant a divorce since the marriage is invalid (if they don't recognized mixed religion marriages) and they can't go back to Canada to get a divorce because they are residents.

    Or they moved to pre-1996 Ireland which didn't even grant divorces.

    It is complicated and I think merits a bit more than tough luck, not our problem. If there are easy and non-costly ways to assist, then why not? Don't make it our problem, but if Canada has some connection then there may be some way to assist.

  2. Except that there is an inconsistency: if our laws preclude aliens from divorcing here... why not also preclude them from marrying here?

  3. No inconsistency, Snip. The vast majority of those foreigners who get married in Canada make sure their home jurisdictions recognize their marriage, and will allow them to divorce. Otherwise why bother to marry here?

    Why is the onus on Canada to spoon feed these people--don't they have an obligation to find out what our rules are before they act?

  4. Well the matter has now been cleared up. And it is up to Conservatives to save the day for same sex marriages and clean up the mess left by the Liberals. Anyone who actually thought a Harper government was going to roll back the laws on same sex marriage was sorely mistaken. This is NOT a socially conservative government, so you can also count out any law limiting abortions on demand in Canada.

  5. Ted, I think we can agree or disagree on various elements of this issue without making it an attack on "the Harper Government." A lawyer from the justice department who represents the Crown in a court surely is mis-characterized as being of "the Harper Government" however accurate it may be in a narrow technical sense, if at that.

    If anything the person is a "civil servant" rather than a member of the Harper government. Your argument is sound enough without this too-cute-by-far political sniping.

    Also, remember the Liberals were the party in power when same-sex marriage was legalized in Canada. PM Harper was not in power when this couple married in 2005. When he came to power in 2006, was he supposed to review every marriage that had occurred under the Liberals to make sure all could be dissolved at some future date? I have not blamed the Liberals for not thinking through every eventuality when they enacted new legislation to extend the meaning of marriage.

    Don't worry, though, Harper's government will fix this. [grin]

  6. I recall during the debate on SSM (don't forget the Lib gov't of the day claimed they had no intention of changing the current def. of marriage) hearing the argument "What difference will SSM make on your marriage?"

    Not sure but it may change how divorce occurs.

    Can I get a divorce in Canada even if I don't live here or is that only for SSM couples?

    Can people "shop around" and get a divorce settlement in a more favourable jurisdiction?

    Will Canada honor foreign gov't rulings on divorce if people here are living in relationships (multiple wives)that are not recognized by Canadian law?

    This is potentially a complicated, expensive and dangerous case. I fear a quick resolution could overlook some profound contradiction.

    It is clear that the Libs were hasty in wanting to look like the tolerant bunch when they hatched up the plan in the first place. It wasn't that difficult to figure out that divorces would start to surface. On the other hand, I suppose if they were involving Canadian SSM's they would be no more messy than the other divorces that occur here.

    Many Canadians choose to travel to exotic destinations to have dream weddings (cruises, tropical islands etc.). I suspect that all of them are advised to have a legal but "quickie" marriage in Canada for legal purposes. Those who do not are taking risks.

    It is too bad that it is Canada its taxpayers and courts that are being asked to pay the price for the risks taken by others.

    Our generosity has been exploited.

  7. I don't think I'm trying to pin anything on the Harper Government. It is the actions of my government that has triggered the response so I focus my concerns on my government.

    If Harper wants to re-brand the whole government as the Harper Government, then how is it a slam or attack by calling our government the Harper Government? Furthermore, we have heard endlessly from the Harper Government about ministerial accountability so we can't now turn around and blame the civil servant. We have to be consistent here. He can't have it both ways.

    And this is not merely one civil servant off doing something on their own.

    Nor is it a mistake that anyone made in the past. So I'm not sure what blame is needed or called for.

    This is the government - the Harper Government - taking a position today in a court filing by the Harper Government that the marriage is not valid because of some foreign jurisdiction's laws.

    That is completely asinine. So much so that, fortunately, the Minister clarified this afternoon that that is not the position of the Harper Government and they will correct their error.

    They will also, or so he claims, amend the Divorce Act to allow for same sex spouses to divorce in Canada if they were married here. Now that is a surprise since, as I noted above, I don't think it should be.

    However, that announcement seems, frankly, more like damage control over a mistake by his Ministry in filing that application in court. I would be surprised if any amendments come forth after he's had the time to talk to experts.

    Having said that, there are a bunch of issues that, while not catering to any particular group, have been highlighted by equal marriage.

    For example, another court case being considered right now is a UK "civil partnership". They don't call it marriage in the UK for political reasons and so when the couple moved here (they have residency) our courts said they can't divorce here because "civil partnership" is not "marriage". But of course they aren't residents in the UK any longer and can't get divorced there.

    This is my point #3 and I would welcome the Harper Government's action on helping out these couples who are caught between a rock and a hard place.

    A similar issue arises from a muslim who is legally married in the Middle East to multiple spouses and has moved here and wants to comply with our laws. How does such a person actually divorce or disentangle him or herself from such arrangements.

  8. Ted Betts said...

    This is the government - the Harper Government - taking a position today in a court filing by the Harper Government that the marriage is not valid because of some foreign jurisdiction's laws.

    That is completely asinine.

    No, Ted. This is Canadian law AS IT STANDS, thanks to the Liberals. Get your facts straight before you post.

    So much so that, fortunately, the Minister clarified this afternoon that that is not the position of the Harper Government and they will correct their error.

    THEIR error, you say?

    Let's see what the Minister actually said, then:

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

    “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.”

    Nice try, Ted.