A legislative gap

by Aaron Wherry

While blaming the Liberals for whatever might be wrong with the laws concerning same-sex marriage, the Justice Minister assures that everything will be fine.

Speaking at a Toronto luncheon Friday, Mr. Nicholson blamed the Liberal government that preceded his for not filling a “legislative gap” that has left thousands of same-sex couples in an agonizing position of being unable to divorce should they feel a need to. The situation has been “completely unfair to those affected.” Mr. Nicholson said. “I want to make it clear that in our government’s view, these marriages are valid.”




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A legislative gap

  1. Terrific – people from abroad can soon have fake divorce after their earlier fake wedding. It was vexatious past 24 hours but I am now serene, however.

  2. That’s better. By eliminating any reference to Canada or the law in the sentence, it goes a long way to close that gap for marriages done here for folks living elsewhere.

    I would like to hear that the AG’s office has amended their claim to eliminate the “marriage isn’t valid anyway because it wasn’t valid in their home state” reasoning to completely close the matter, but this is pretty good.

  3. Paul Martin had the unmitigated gall to claim yesterday that Harper government  was “tampering” with SSM, so it’s ironic that the problem was ultimately traced to the Martin government’s inadequate legislation.

    • It’s true — the Martin govt did nothing in relation to the Divorce Act when they legalized SSM.  This was a foreseeable consequence of that.  I’ve usually got a lot of time for Paul Martin, but he’s being a complete partisan butthead on this one.

      • Again, this has nothing to do with the divorce act, and had the government merely contested the divorce on the grounds of lack of residency, this wouldn’t have made a murmur in the media.

        The noise about it has come because, and only because, of the AG’s insistence that the marriage was null and void because it was not recognized in their home state.  That was not a consequence of legislation, which says nothing of the sort, that was entirely the consequence of the AG office’s interpretation in their defense of the refusal to grant the divorce.

        • I think if they offered to invalidate the marriage because the couple couldn’t get a divorce at home, it was a decent thing to do.  Imagine the hoopla now when this couple finds out they can’t get a divorce unless they reside in the country for one year.

          • They didn’t “offer” to invalidate it. They declared that it had *always been* invalid as part of their defence.

            Regardless of how much you desperately try to distract from that, that is the crux of the matter — that the AG’s office claimed that the marriage had no validity in the first place.

          • No….Had the women moved during the marriage to a place that recognized their married state, I do believe the marriage would have been valid.   The crux of the matter is that they did not have to go through undue hardship to dissolve the marriage but leaving their home state. 

          • Oops, I see I AM COMPLETELY WRONG.  Canada had an international law in place whereby it did respect the laws of the country where the person was from and the marriage was invalid.  Surely, the people getting married should have checked into this before they came to Canada to get married?

          • Well.. you’re right about one thing at least. But after that first sentence you go off the rails again.

            There’s no international law in place — it’s a custom. It’s a custom that we actively advertised we would not be paying attention to.


          • Surely, the people getting married should have checked into this before they came to Canada to get married?

            To be fair, many jurisdictions in Canada actively sold themselves as a place to come and get married.  It was widely promoted.  If you see a jurisdiction actively encouraging you to take advantage of the fact that same sex marriage is legal there, I don’t think one automatically wonders, “gee, I wonder if same sex marriage is really legal there”. 

            In fact, I’d bet some couples explicitly asked “But same sex marriage isn’t legal where we come from.  If we come to Canada and get married, and then go right back home, will Canada still consider us legally married?” and they were told (I guess erroneously as it turns out)  ”Yes, of course”.

    • The legislation was adequate, it’s this interpretation that the Harper AG’s office put on the validity of marriage being tied to the validity of it at the person’s home state.  Kindly show me where it says that in the law.

      • Thwim, read this:
        http://www.slaw.ca/2012/01/12/same-sex-divorce-and-conflict-of-laws/ 

        And this:
        http://www.doublehearsay.com/2012/same-sex-divorce-case-legally-straightforward-politically-exploited-95

        What the lawyer said was legally accurate.  Unfortunately, it was shamelessly torqued by the G&M’s inaccurate and sensationalistic reporting.  Had the G&M done proper due diligence, the lawyer’s remarks would not have been misconstrued by so many people.

        When the Martin government introduced SSM legislation, it was predictable that non-resident couples from non-SSM jurisdictions would get married in Canada, so it also should have been predictable that some of these non-resident couples would eventually seek a divorce.

        • We have hets from other countries getting married here all the time….divorce has never been a problem for them. Even if they couldn’t divorce in their own countries.

          This was simply a Class A cock-up on the govt’s part.

          • Well they have to stay in the country for one year before they can get a divorce and if the marriage is not valid in their country it isn’t valid in Canada….check crit reasonings online sources….it is Canadian law and I guess marriage tourists should know it before they come here.

          • Hokum

        • I asked you to provide for me where it says this in the law. You have not. You have taken the same interpretation of the “general practice” – of an unwritten observance between countries – that the AG’s office has, an interpretation which, incidentally, is supported by no government or official political party in Canada at this time, and which — by the country and provinces actively advertising same-sex marriage availability in other countries, this country was effectively stating it would not be observing.

          As has been pointed out before, there are a variety of things, even written legislation, which our government and populace quietly ignore because it is obviously anitquated, but nobody’s gone about taking it off the books.

          This lex loci you’re pinning your argument on isn’t even written, has been previously signalled that it would be ignored, and has now essentially been confirmed by the government of Canada that it will be ignored. Would you be similarly arguing in favor of the lawyer if the case happened to involve an interracial couple with an oppressive home state as opposed to a same-sex couple?

          And again, the divorce issue is irrelevant other than as the instigation for the real issue, the AG’s office being overly aggressive in its defense of the refusal of divorce.

          • I agree that the common law, as it stands, creates an injustice. That can be addressed by legislation, or a court issuing a decision that changes the law. But the issue of conflicts of laws and such matters as lex loci won’t go away just because you want it to. It is the law and the drafters of the legislation should have addressed it when the law on marriage was changed.

          • Yes, but Thwim and Emily are congenitally incapable of ever admitting that a Liberal government might have ever done anything wrong.  That’s the crux of the problem.

          • Except lex loci is not a law.
            It’s an observation that states generally undertake when laws are in conflict, and it is entirely within the purview of the state to *not* abide by it, something which we signaled we were going to do when we advertised gay marriage in states where their was no recognition for such.

      • Thwim, it wasn’t adequate. For the reasons that CR indicates.

        The divorce act should have been amended as well. I know that is not the argument being made here, but if this argument weren’t being made it’s still a gaping hole in the legislation that should have been closed before we allowed ourselves to become the Las Vegas of gay marriage. This issue came to light over 2 years ago.

        But none of this matters to our media. The only reason they ever have to report on gay marriage is to try and trot out the social conservative hidden agenda boogeyman again. It doesn’t have to be true, it just has to be plausible.

        • There’s no hole in the legislation.

          There’s a lex loci custom that the AG chose to enforce, despite it being supported by no Canadian government, official political party, the majority of the Canadian citizenship, and which through our advertising of same sex marriages to other countries, we were implying would not be observed here.

          As to this specific case, I actually agree that this couple shouldn’t be granted their divorce without residency — too many issues surround enforcement of it. But to argue that the AG’s office was correct in characterizing their marriage has having never had any validity at all is ignoring the bulk of reality on this issue in Canada.

          • There’s no hole? Tell that to the couples from the 2 year old CBC story I linked to. Nobody told them their marriage wasn’t valid here; they were just told they couldn’t get divorced here because of the residency requirements in the divorce act, which were overlooked as part of legalizing SSM and allowing foreigners to partake in it. That is no “lex loci custom”. It’s in the divorce act today.

            JURISDICTION
            Jurisdiction in divorce proceedings

            3. (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

          • How is that a hole? That’s just how the legislation is, and you know what? It makes a ton of sense to me, for reasons beyond any sanctity of marriage — enforcement of divorce requirements for instance.

            I simply see no practicable way for us to do it otherwise, and if the CPC changes *that* without some pretty ingenious legislation dealing with the fallout from out-of-country divorce enforcement, I’ll be sadly disappointed.

            As I mentioned in the message previous, I’m perfectly fine with the couple being denied divorce based on residency. It’s this crap about denying the validity of their marriage in the first place that was a problem.

          • Of course it’s a hole. It’s not a hole for residents but It’s a GIANT hole if we are going to allow foreigners to get married here explicitly because their marriage is not recognized at home, but then give them no way out. What if they want to marry someone else here?

            At the very least they should have been warned when getting their marriage license, “you will not be able to undo this”.

          • Of course it’s a hole. It’s not a hole for residents but It’s a GIANT hole if we are going to allow foreigners to get married here explicitly because their marriage is not recognized at home, but then give them no way out. What if they want to marry someone else here?

            I believe that for a couple where one of the individuals wanted to marry someone else there’s still a “way out”.  It seems to me that they could still have the marriage annulled on the basis that it is not recognized in their home jurisdiction.  Admittedly, it would be WEIRD to annul one marriage on the basis of it’s invalidity at home, in order to facilitate the creation of ANOTHER marriage that will lack validity at home, but I think it’s doable.

          • Most jurisdictions have a residency requirement for divorce. That is why Reno Nevada built an industry out of divorcein the old days, having a very short residency requirement and liberal divorce laws. The residency requirement may come as a surprise to some couples, but it applies to everyone, so it obviously has nothing to do with same-sex marriage. The issue could easily have arisen in the case of any other foreigners coming to be married at a place like Niagara Falls.

        • I assume your mention of amending the Divorce Act is about the residency requirement?  If so, while I certainly agree that it SHOULD be amended, you’d agree, would you not, that there was no reason necessarily that it HAD to be amended by the Martin government.

          While annoying, I don’t think there’d have been ANY of this hoopla if the arguments made in the case in Toronto had been restricted to “Sorry, you can’t get divorced here because we require at least one member of the couple to be resident in Canada for a year before granting a divorce (and btw, that would be the same for you if you were straight).

          In other words, yes, it’s arguably a problem in our system that these 5,000 couples who got married here from abroad can’t actually get divorced here, but the CONTROVERSY was over the argument that the marriages of those 5,000 couples were never valid to begin with.

          Interesting that this has been known for two years.  Why didn’t the Liberal government fix it during that time?  Oh, right…

          • No, I wouldn’t agree with that LKO. That should have been part of the legislation if the idea was to let foreigners flock here to get gay marriages that they couldn’t get at home.

            The only reason it wasn’t made a big deal of 2 years ago is because there was no opportunity to trot out the social conservative boogeyman who is going to take your gay marriage rights away. The media doesn’t get too interested in gay marriage stories until it can be massaged into that narrative.

            I’d say it’s arguably a bigger issue to have the state recognize your marriage but refuse your divorce than to not recognize your marriage at all. Here’s why.

            If I live in Backwardsville, USA, and I’m in a gay marriage to Fred, but then want a divorce and to marry Barney, I probably can’t get a license to marry Barney in Canada if I’m stuck in my recognized marriage to Fred and can’t get a divorce.

            However, if my marriage to Fred is not recognized as valid I can go ahead and get a license to marry Barney. I mean, even if Canada doesn’t recognize it…the marriage is only symbolic anyways since gay marriage is not really recognized in Backwardsville either. It’s all about the ceremony.

          • I take your last point, but should we be issuing marriage licenses to people if it’s not legal, but simply “all about the ceremony”?  We CERTAINLY shouldn’t be doing so, I don’t think, if the couple involved are led to believe it’s all legally meaningful.

            On another point, if your marriage to Fred was never legally valid to begin with, then I don’t understand why you’d go back to Canada to have another ceremony to create another “marriage” that isn’t legally valid either.  If people just want to have a ceremony with no legal validity, why on Earth would they come to Canada?  In other words, if you’re not married, how is the inability to get divorced a problem?

            I guess I just figure that if your marriage to Fred is not legally valid then you never should have been given a license to legally marry Fred.  Furthermore, if your upcoming marriage to Barney will ALSO be legally null, then you SHOULDN’T get a license to marry Barney.  Not because your marriage to Fred hasn’t been formally ended (since it never existed in the first place) but because you can’t legally marry Barney, even in Canada.  We shouldn’t be making people pay for marriage licences if they have no legal meaning.

            I guess I agree with the logic of “it’s arguably a bigger issue to have the state recognize your marriage but refuse your divorce than to not recognize your marriage at all”.  My point about the residency requirement was more that so long as NO ONE (gay OR straight) can get a divorce in Canada without satisfying the residency requirement, at the very least that’s a law that’s being applied equally, regardless of sexual orientation.  On the other hand, if the couple in question in the Toronto case DID meet the residency requirement, the arguments made by the federal lawyer in this case suggest that they STILL would not be granted a divorce (on the basis of the reasoning that they were never legally married) whereas a heterosexual couple in the exact same situation WOULD be granted a divorce.  To me, that’s an unacceptable difference.

            ETA: as for being stuck in your marriage to Fred, it occurs to me that for a couple where one of the individuals wanted to marry someone else there’s still technically a “way out”. It seems to me that they could still have the marriage annulled on the basis that it is not recognized in their home jurisdiction. Admittedly, it would be WEIRD to annul one marriage on the basis of it’s invalidity at home, in order to facilitate the creation of ANOTHER marriage that will lack validity at home, but I think it’s doable.

          • We CERTAINLY shouldn’t be doing so, I don’t think, if the couple involved are led to believe it’s all legally meaningful.

            Bingo. That’s why I predicated everything with “if we are going to let foreigners get gay marriage here”.

            I’d say we shouldn’t be in the business of doing that. Yeah, pictures of all those ecstatic American gay couples getting their wedding photos here made a great postcard for how wonderful and progressive and amazing Canada is, but in retrospect it meant nothing.

      • The legislation is silent on the issue, (of the legality of the marriage, not the residency period for divorce) but the common law has always looked to the domicile of the parties in such situations.  If the intention was to change that it should have been done by legislation at the time the same-sex marriage act was passed.

  4. Does this mean the couple’s lawyer is going to drop their 24 page, 87 point submission?  She made out that they were “world-wide victims”.  The Federal lawyer made 4 pages of suggestions but based his ruling on the non-compliance to the 12 month residency of one or the other (or moving to say NY or CA at their residency terms).  Same old, same old – go to the friendly media and try and force a whole country to change the rules to suit your cause.

    “The couple went to court last June seeking a Canadian divorce, despite the federal Divorce Act’s one-year residency requirement, which they do not meet. Their submission argues the rules are discriminatory, and the couple is seeking $30,000 in damages for negligent misrepresentation by the province of Ontario if their marriage is found to be invalid.”

    http://www.cbc.ca/news/politics/story/2012/01/12/pol-harper-same-sex-marriage.html 

    • I was thinking about that — I’d be interested to know to what extent, if at all, this couple and/or their representatives tried to get the legislation changed through other means first, e.g., writing letters to MPs, the Justice Minister etc., using old-fashioned public relations, lobbying and so on.  If they just went straight to Charter/court challenge, then that pisses me off a bit. 


      • If they just went straight to Charter/court challenge, then that pisses me off a bit.

        I’m not sure I understand why that’s so.  If one believes that a law is discriminatory, and is specifically harming them, why would any particular (legal) avenue of addressing that situation cause anyone consternation?  To my mind there’s nothing less “proper” about arguing before the courts that a law is unconstitutional and should be changed, than there is about arguing before legislators that a law is unconstitutional and should be changed.  It seems to me that your objection is largely that this couple decided to take the (presumably) more efficient route.

        • Don’t get me wrong; I’m not saying they have no right to go to court.  And obviously it depends in each case on the particular wrong, the particular right, the particular statute etc. etc.

          And I’m just focusing on the challenge to the residency requirement.  The thing about a court challenge is very often at law, the array of remedies available to a court can be very limited, so in that sense a Charter challenge amounts to a very blunt instrument, compared to the legislative or political process.

          The complainants are arguing constitutionality because that’s what you do in a Charter challenge.  But they wouldn’t necessarily be arguing constitutionality if they were trying to get the residency requirement changed via the political or legislative process.  You can argue that a law is wrong or ought to be changed without claiming it’s unconstitutional.

  5. Well, I`m glad we got that fixed up before the week-end.
    If those who were directly affected by this snafu and those who chose to use this mistake in legislation as a platform to slam Harper ( some media, some Libs, some in homosexual community ) would like to just be quiet for a few days then things should get back to normal.By the way, why is Paul Martin determined to sabotage his own legacy ?

  6. “Mr. Nicholson blamed the Liberal government that preceded his for not filling a “legislative gap” that has left thousands of same-sex couples in an agonizing position of being unable to divorce should they feel a need to. The situation has been “completely unfair to those affected.” Mr. Nicholson said. “I want to make it clear that in our government’s view, these marriages are valid.”

    There seem to be two different threads to this story. One that the libs didn’t adequately plan for the event that people who marry might also like to get divorced too[ really any glance at marriage stats would tell you that ; these days they should issue them at the same time.). And the other the bizarre courtroom assertion that marriage certificates that have been legally issued here are not valid in non compliant countries - and now Nicholsons dissonant claim that these marriages are valid.So what gives, did the media report this incorrectly[slant it] or is Nicolson off his meds? Or is the govt busy backpeddling forwards? They can’t both be right, can they?

  7. Good. Now we can get back to bangin’ on the socialist billionaire
    furriners … or has that been disappeared already ?


  8. “I want to make it clear that in our government’s view, these marriages are valid.”

    Pretty close to good enough for me!  If the Tories are actually going to fix this, then frankly, that’s more than I expected.

    • Indeed, and that’s part of what I find so funny about those so vociferously protesting that what the government did before was perfectly fine. If that was the case, then aren’t they arguing that the government now is heading in the wrong direction?

      A mistake was made in government, and by all appearances, when it came to light, the government acted to correct it. That’s great, that shows learning. But this knee jerk reaction to defend the government at all costs mean that it’s never allowed to be wrong, and so can never learn or improve.

    • Of course, it doesn’t really matter what the justice minister thinks, unless he changes the law. It would still be open to one of the parties in a contested divorce to argue that their marriage was invalid, using the same jurisdictional arguments.  The court would have to apply the current law unless it is changed by legislation.

      • True. That’s why this is only “pretty close” to good enough. I presume the Minister’s comments to mean that the Tories are going to fix this issue legislatively.

        As you say though, if they don’t, then the Minister’s “view” is meaningless.

  9. I’m struggling to figure out why anything should be changed at all.  Certainly, there are symbolic reasons to change the Divorce Act because of this type of circumstance, but if one doesn’t consider symbolism a sufficient reason for substantial legislative change, what other reasons are there to do it?

    The couple at the centre of this imbroglio illustrates this well – why is it necessary for us to move legislative heaven and earth for the benefit of two persons who came to Canada for a few days five years ago to get a piece of paper that they knew (or should have known) was meaningless in the jurisdiction they resided in so they can now get another piece of paper that is equally meaningless in the jurisdiction that they reside in?

    And what, at the end of the day, is the real (non-symbolic) impact of their inability to get a Canadian divorce?  The lack of a Canadian divorce decree presumably doesn’t prevent either of them from being legally married to anyone else in their home jurisdictions.  The fact their home jurisdiction doesn’t allow them to marry same sex partners is no fault of the Canadian Divorce Act, and even if it was, amending the Divorce Act won’t solve that problem for them anyway.

    One issue is obviously they can’t return to Canada to marry someone else while they’re still considered married to each other here, although perhaps even that’s not a problem, if the federal lawyer is right (or at least until the polygamists’ Charter arguments prevail).  If they do want to return to Canada to marry someone else, maybe the fact they’ll have to live here for 10 months so they can get a divorce then remarry is a reasonable price to pay for their lack of due diligence in the first place.

    • Uh.. wow.. I completely agree with you. 

      Nothing to add really, I was just so shocked to realize it that I had to tell folks.

      • Now I’m worried

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