Divorce and equality


Irwin Cotler responds to the Justice Minister’s comments last week about the laws governing same-sex marriage.

While it is true that there exists a Canadian residency requirement of one year before a couple may divorce here, this requirement applies to all marriages — homosexual and heterosexual — and existed long before same-sex marriage was adopted in this country. Indeed, this provision is from the 1985 Divorce Act introduced by the Conservative government of Brian Mulroney. Certainly, if this provision needed fixing so urgently as a result of same-sex marriage, the Conservatives have had ample opportunity to do so since their assent to power in 2006.

While it appears that the couple in this particular court case — comprised of one partner from the UK and the other from Florida — may not meet this requirement, the government could have rested its case here. Instead, the government went a step further and deserves to be called out on its approach — it is one thing to say this couple cannot divorce because the residency requirement has not been met; it is an entirely different contention — and an offensive if not discriminatory one — to assert that the couple was never married in the first place. This is to turn fact and law on its head, while in the process undermining equality for gays and lesbians.


Divorce and equality

  1. The government response to this is just mystifying.  What exactly is this legislative gap?  Gay marriages can be dissolved, if the residency requirement is met.  But Nicholson said he will make sure this couple can dissolve their marriage – how – by exempting the requirement just for them.  That wouldn’t be fair to everyone else.    

    • According to the cbc the govt’s postion is that it was an overzealous govt lawyer exceedig his authority in the first place. Maybe  JK or somebody like that got to stick his oar in before king Steve spotted him?

    • I believe that the argument is that the law needs something akin to a notwithstanding clause, i.e. “notwithstanding that it is common international practice for countries to deny the legality of marriages within their borders if the home jurisdiction of the couple do not recognize the legality of said marriage, Canada will recognize the legality of marriages performed in Canada according to Canadian law regardless of the legal definition of marriage in place in other nations”.  I think the problem for the Liberals is that either they never thought about that, or they simply assumed that it went without saying.

    • To dissolve a marriage (and apply the residency requirement) there has to be a valid marriage in the first place. The legislative gap is that Canadian same-sex marriages between foreigners (or a foreigner and a Canadian living abroad) might not be valid at all. This is because the capacity of a foreigner to enter into a marriage under Canadian conflict of law rules is usually determined by that person’s law of domicile. In most cases this poses no problem for opposite-sex partners. But as most jurisdictions in the world do not recognize same-sex marriages, applying this priciples to same-sex couples seems rather unfair (and may not be consistent with the Charter or Canadian public order, as Canada decided that there is no difference between same-sex and opposite-sex marriages – but it is better anyway to clarify that those marriages are valid.)

  2. Aaron, I sure hope “assent” at the end of the 1st para. is the result of a reporter’s quick typing & not the onetime Minister of Justice’s mistake.

  3. I don’t know what the govt thought it was doing here, but it was certainly a botch-up all round.

  4. Hey Mr. Cotler, perhaps you shouldn’t have screwed up when crafting the same-sex law in the first place.

    Just like the Liberals screwed up writing the new security law after 9/11, many provisions of which have been found unconstitutional by the courts.

    • So what is the problem specifically? 

    • Isn’t the issue here one of common law and not legislation?  I don’t think it’s implausible (though perhaps naive) that the Liberals simply thought “no Canadian government is ever going to argue that a couple who legally wed in Canada are not considered legally married by Canada just because their home jurisdictions don’t consider them legally married”.

      • But that’s the “law” as the Liberals enacted it.  The Liberals didn’t specify that the marriage law superseded the internationally consensus on the “law of domicile”.

        Cotler was sleeping on the job.  Just like with the provisions in the anti-terrorist laws the Liberals enacted that keep getting shot down by the Supreme Court.

        • Shouldn’t be any residency requirement for anyone….just waive it.

          But to claim all those marriages were invalid is absurd.

        • “International consensus” is overstating it a bit, no? You make it sound like there was a meeting at the UN or something as opposed to this being a common law tradition.

          I simply don’t find it all that implausible that it never occurred to the Liberals that a future government of Canada (or federal lawyer) might argue that how Canada views a legal relationship formed in Canada according to Canadian law might be essentially overruled by how another jurisdiction defines that relationship. I’m sure it occurred to people that, say, Florida would not recognize a married same sex couple as married, but it seems to me not implausible that it didn’t occur to anyone that Canada would refuse to recognize said couple’s marriage just because Florida does. And, after all, Florida apparently actually changed their own domestic law so as to avoid having to recognize marriages performed outside of Florida, so it seems to me that common law tends to lean towards jurisdictions respecting the decisions and legal traditions of other jurisdictions in this matter, as opposed to overriding them.

        • I doubt there is an “international consensus”. Private international law, though it is called international, is subject to national legislation. While some states use the law of domicile to assess the essential validity of a marriage, others do not. The U.S., for example, use the lex loci celebrationis, or law of the place where the marriage is performed. And it is rather unclear if the lawyer in the divorce case was correct, as the law of domicile may not be applicable to same-sex couples at all.

  5. This comment was deleted.

    • Says the guy wih the weird hat.  Why people get married or divorced is not always logical. That is beside the point.

      • I think the point is hidden by the hat…

    •  Maybe they want a divorce because their marriage is still valid in Canada? Maybe they want to get married again, and not be guilty of bigamy (s. 293 Criminal Code).
      And even though their home countries do not recognize their marriages as such, they may still give them legal status, e.g. recognize them as civil partnerships.

  6. Huh? Irwin Cotler? I heard he quit.

    • Yup.  I heard that the by-election to replace him is already scheduled.

      • But is a by-election really necessry – the new MP is already hard at work?    In this time of austerity we need to trim unnecessary expenses. 

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