‘The law recognizes same-sex marriage in Canada’

Brian Topp and Paul Dewar respond to today’s news. Emmett Macfarlane considers the case and defers to the Charter.

The Prime Minister was in British Columbia just now for a shipbulding announcement and was asked again about the case.

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.

Mr. Harper was then asked specifically whether the government considered the same-sex marriages of non-citizens to be legal or not.

The law recognizes same-sex marriage in Canada and the government is not going to reopen that issue.

The reporter who asked the second question was heckled when he did so.




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‘The law recognizes same-sex marriage in Canada’

  1. But that’s still not really an answer.  Yes, the law recognizes same sex marriage in Canada.  But that position is not inconsistent with saying “provided that the domicile of the two parties also recognizes same sex marriage.”  It’s also not inconsistent with saying “provided the two parties are Canadian citizens or are resident in Canada.” 

    • Perhaps Irwin Cotler (or the Liberal majority in the Senate) should have given the legality of the inevitable SSDivorce some thought when he legislated SSM.
      The domicile laws were in place in 2005.

      • I am willing to wager that at least one Iranian has married a jew in Canada at some point in the last decade and no one cared, even though that marriage was illegal in Iran. 

        • How many marriages to child bribes and multiple wives are recognized in Canada, none……. so the reverse is true too.

          Wife #5 can not file for divorce in Canada because Canadian law does not recognize more than one spouse.

          • That’s a specious comment that proves my point.  Canadian law is what controls and should control.  The fact that multiple marriages or child brides are allowed elsewhere does not control our law.  Thus if SSM is prohibited in other countries, it shouldn’t change how we do things. 

          • “it shouldn’t change how we do things”

            Yes and how we do things is make people reside in the country one year before they can apply for a divorce  OR  we can agree that their marriage is invalid because they can’t get a divorce at home due to non-recognition of their married state….you pick.

          • ok.
            When in  Canada,  non-resident SSM is valid, that was/is the spirit of the law, Harper said the same.
            The DoJ lawyer submission pointed to an old law that frustrates our 2005 SSM law, credit to him for picking up on that. Surely there is a fix.

            That aside, in Canadian law,  there is a requirement of residency for 10 months to obtain a divorce.
            There’s good reason for that law not to change and make Canada the quickie divorce destination of the planet.

            Non-res SSM couples can petition for an annulment (undo the marriage).
            If the Canadian marriage is not recognized in the couples country or residence, their courts won’t recognize the divorce either.
            Canadian courts have no jurisdiction to enforce property settlements in other countries.

          • @57fc79f8528c0aa6c4b4330d53700334:disqus Take it up with the Justice Minister, even he seems to know more than you do:

            “I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”

            Of course, he still doesn’t touch the issue of whether Canada recognizes a marriage done here as valid if your residence doesn’t recognize them. Which is really the question on everyone’s mind no matter how much you try to deflect.

        • The point here is not about marriage but about divorce…..if the marriage of a Jew and Iranian is illegal in Iran and such a marriage was performed in Canada, the couple would likely have no problem getting divorced in Iran….if they would even require a divorce there given that the marriage was illegal…….
          Canada is happy to recognize the same-sex marriages of non-residents as legal but we cannot provide them with quickie divorces. 

          • Which has absolutely no connection to whether their marriage actually happened. What the government is contending isn’t just that they can’t get a divorce here, but that they can’t do it because their marriage was invalid.

    • I don’t think it is all that difficult to understand….you are only legally bound by the same-sex marriage IF you are a Canadian OR if you live in a domicile that recognizes same-sex marriage.  The reasoning is that in those instances you have a way to “unbind” yourself in the place where you reside by seeking a legal divorce.  You do not have to incur any undue hardship by having to travel to a place that recognizes same-sex marriage in order to legally be released from the union.  For those who could not divorce in their own “domicile”, the union becomes invalid should they wish to separate as they have no easy means to legally “unbind”.

      • I’ve rebutted you enough on this issue.
        Suffice it to say that the condition of marriage does not require the condition of “eligibility for divorce” in any way shape or form, and lacking the latter does not mean that the former is invalid unless we declare it so.

  2. And just who is heckling reporters?

    • The workers excited about 30 years work shipbuilding.

      • Then they are not worthy of their hire….nor will they last long.

        • That is one of your most “ignorant” comments ever.

          I was there and it was a great day for the North Shore!!  Seaspan guys had every right to boo the reporter who tried to take away from the celebration by injecting the SSM question.

          • Dunno, comparing selling our oil to selling the plague or mustard gas ranks up there.

          • Well you may love the stuff so much you bathe in it….other people aren’t as fond of the harm it causes.

          • No one should be trying to stop reporters from doing their job…it’s what upholds democracy.

            There is no infrastructure, and there are no jobs….so far this is all talk.

  3. The couple(s) in question should be pressuring their respective governments. Seems like a can of worms if they want Canada to enforce its marital/divorce laws in other jurisdictions.

  4. A lot of people should be ashamed of themselves today for grotesquely misrepresenting this as some kind of Harper government policy shift:

    Shame on Paul Martin:
    http://www.theglobeandmail.com/news/politics/ottawa-notebook/paul-martin-laments-tory-tampering-with-same-sex-marriage-law/article2300701/ 

    Shame on Bob Rae: http://www.theglobeandmail.com/news/politics/ottawa-notebook/sudden-legal-stand-against-same-sex-marriage-defies-logic-rae-says/article2300424/?utm_medium=Feeds%3A%20RSS%2FAtom&utm_source=Politics&utm_content=2300424

    Shame on Dan Savage, who should have checked the facts before hyperventilating: 
    http://slog.thestranger.com/slog/archives/2012/01/12/canadas-conservative-government-turns-my-husband-back-into-my-boyfriend 

    And of course, shame on the G&M and David Miller.

    • Mind you, anytime in the last 10 hours, a simple statement that said “oops, sorry, our lawyer made a mistake” would have made everyone shut up. 

      Since the government, so keen on message control, failed to do so during that time, what were we to think?

      • The lawyer did not make a mistake,
         numerous legal elites have chimed in, that’s how our Canadian law reads now and when Irwin Cotler/Martin brought in the legislation.

      • How did the lawyer make a mistake, exactly?  Also, surely you’re not so naive as to believe that  saying “it’s the lawyer’s fault!” (which it manifestly wasn’t) would have silenced a single bleating critic.

        • Not that lawyers should concern themselves with politics, so it’s not even a “mistake” per se in this sense, but bringing up the whole “Your marriage wan’t legal to begin with” line of argument was certainly a political mistake.

          After all, I’m pretty certain there are still laws on the books (I don’t have a particular example in mind, but I know they’re there) that people would FREAK OUT about if a government lawyer actually tried to apply them in the real world in 2012.  It’s just that most of those are cases where the law is more obviously anachronistic, and it’s blatantly obvious why everyone is ignoring it.  This being a more contemporary issue, that mutually (though silently) agreed upon willful blindness doesn’t attach to it.

          Again, no lawyer should be held responsible for that type of “political” mistake but still, if there’s a 10 month residency requirement to be granted a divorce in Canada, wasn’t the whole “Your marriage was never legal in the first place” line of argument just gilding the lily?  I don’t understand what would have been wrong with a simple, “Sorry, Canadian law does not allow us to divorce ANY married couples unless at least one of the people involved has lived in Canada for 10 months before the application”.  And while the lawyers shouldn’t have to make those kinds of judgements, still, this is the first case of this kind in history, involving a very sensitive political issue.  Why wasn’t anyone paying attention to this?  

          That said, on the one hand, it’s actually good that this came up, as there’s obviously an important inconsistency in our laws that needs to be fixed.  On the other hand, I’m not confident it can actually be fixed until we get a new government.

    • On this and so little else CR is entirely correct.  (Although he is always partially correct.)
      On this file, Harper is going to simultaneously appear homophobic to progressives and an unprincipled hypocrite to his base.  Not a good day to be working for Harper me thinks.

      • Is anyone ever “entirely” correct, epistemologically speaking?

        I’d say that I’m mostly correct most of the time, but of course that’s my subjective opinion.  ;-)

      • Disagree! Watch spin master in action. It will be beneficial to Harper at the end of the day!

        • Of course it will be beneficial due to common sense.  Most people who are divorcing would jump at the chance to have their marriages just disappear….poof…like it never happened….no lawyer’s fees.  I don’t get it.  People cannot seem to see that marriage tourism works because the country you live in handles your divorce.  Who goes to Las Vegas to get a divorce?  How would Canadian courts even enforce any rulings made regarding non-residents’ divorce settlements?  The whole thing is ridiculous.  Go to another state in your own country that allows same-sex marrige and file for divorce there and see what happens.

          • It’s a blessing in disguise for him, it’ll be nice to see it unfold!

          • Most of your post is pretty much wrong, or there are mechanisms in place to handle the issue. 

          • Actually, you may want to reread HcI earlier posts on this thread and I might suggest that it will be easier for you to understand his-her quite clear logic if you take off your partisan hat.


          • Most people who are divorcing would jump at the chance to have their marriages just disappear….poof…like it never happened….no lawyer’s fees.  I don’t get it.

            Most people who are divorcing didn’t have to fight tooth and nail to have their marriage recognized in the first place, after having fought tooth and nail to have their relationship decriminalized before that.

            I don’t think it’s at all inconsistent for a couple who have likely literally protested in the streets for their right to get married to say “We’ve come to the conclusion that we wish to end our marriage, but we don’t want our marriage to have never legally existed, as though it never happened”.

          • Heh, that’s the only way I’d ever be able to get out of my marriage. But then in my religion/culture, when you get married your spouse is considered to be as much a member of your family as a blood relation.

    • Do not even get me started with this bunch of nonsense by them! They should be ashamed of themselves but it was a twitt by Susan Delacourt that really bothered me.

      Susan writes: First abortion, now same-sex marriage. Note #CPC govt is banning for non-Cnds what it can’t/won’t ban here

      How irresponsible and bias is that!? Unbelievable

      • Yeah, Susan Delacourt’s knee-jerk partisan outbursts are rather unbecoming for someone who cloaks herself in the mantle of objectivity.

        She also screwed up when she wrote: “It’s consistent with reality that Charter doesn’t protect non-Cdns”, apparently unaware that the Charter protects all residents, regardless of citizenship.

        • I know!! I was going to say something unbecoming when I read that but I figured, she was going to bite her tongue soon enough! I hoped it didn’t hurt too much!

      • Same with Jennifer Ditchburn, saying Harper govt won’t sponsor 3rd world abortions,
        short or selective memory, 
         Liberal (Bob Rae?) motion for Cdn taxpayers to fund 3rd world abortions was voted down by socon Liberal MPs along with CPC ‘minority’ govt.
        Very bad day for Ignatieff, one of many
        Parliament voted down the motion.

    • I give a bit more leeway to Dan Savage. After all, the initial reports he read seemed to pretty explicitly (though I think erroneously) indicate that the Government of Canada was trying to undo the legality of HIS marriage.

      It’s a bit different when the person over-reacting to news that the Canadian government is apparently trying to invalidate the marriages of foreign gay couples who married in Canada, when you’re one half of a foreign gay couple who married in Canada!

      • I did see that interview with Savage and my initial reaction to him was—take a breath buddy.
        He came here 5 years ago–got hitched–went back to USA—drops back here occasionally and thinks it`s cool when he tells the Canadian Border official that he is travelling with his husband.He wakes up Wed. morning and reads on his twitter a statement a lawyer made in a divorce case in Toronto and his whole world blows up. He must have called every news agency in Canada immediately because his face was all over the news bad-mouthing our gov`t for doing some wrong to him.Savage would be best to shut his mouth, be grateful for his Canadian marriage, and next time give things 24 hours to settle before he makes a fool of himself.

        • Don’t you mean “be grateful for his Canadian marriage… if it exists“? If the argument in this divorce case is correct, then Dan Savage’s marriage is not legally recognized in Canada, because it’s not legally recognized where he lives. So, while Dan Savage THOUGHT he came here 5 years ago and got hitched, this argument suggests that that marriage is not considered valid, and to my knowledge no one has explicitly repudiated that argument yet.

          People shouldn’t be blaming the government of the day for this legal argument, but if this legal argument is correct, I don’t think it’s shocking to find out that people who thought they had been legally married in Canada and are now finding out that maybe they weren’t, are upset about that fact.

          • I don`t think there is any doubt Savage was legally married 5 years ago and he remains legally married.
            As HcI clearly stated above, the problem is not with his marriage it is with his possible divorce. I`m sure you know this case is not an attack on same-sex marriage but rather a legal mess because of the fact that these two women cannot get divorced in their homeland(s) and do not wish to spend 10 months in our winter wonderland.I think Savage, and those who choose this case as an opportunity to slam the ” Harper Gov`t “, are doing harm to those who are grateful for the tolerance of Canadians and who wish to continue to use Canada as a place to get legally married.

          • I still have doubt.

            Yes, ONE of the cited reasons the couple in question in this case can’t get divorced here is the 10 month residency requirement. However, in the context of that divorce case it would seem that a lawyer representing the government of Canada has argued that ANOTHER reason that they can’t get divorced is that they were NEVER LEGALLY MARRIED, because Canadian law does not allow for Canada to marry foreign couples who’s marriages would not be recognized by their home jurisdictions. And no one from the government has come out and explicitly contradicted that argument yet either. If that argument is inaccurate and specious, fine. However, if that lawyer’s argument is correct, and the couple in this divorce case were never actually legally married, then Dan Savage was never legally married either. In fact, almost none of the 5,000 or so couples who came here to get married are.

          • I`m not sure why that lawyer said that they were never legally married, but let me guess:
            Either through consultation with the ladies` lawyer or with legal contacts in Fl. or U.K. constituencies this lawyer, when he asked why they do not get a divorce in their home,  was told that they cannot get a divorce in their homeland(s) because these places do not recognize their marriage as being legal.I`m not sure what the answer is to this mess:Save the divorce costs—never were married.Come stay with LKO for 10 months.Do we have internet divorces yet–I see a business opportunity

          • @4a64130278c80432e4d05477e5ee5a66:disqus 

            You’re still focusing on how to solve the issue of the divorce though.  That needs to be settle, sure, but I still think the bigger issue is the legal argument that’s been made by a federal lawyer that the couple in question were never considered by Canada to have been legally married in the first place.  

            This particular couple is stuck with their “can’t get divorced” problem (because of the residency requirement), and while I sympathize, right now I have no issue with that being the law, because it’s the same for ALL marriages.  If this couple were straight we wouldn’t be granting them a divorce either.  However, the whole “Canada doesn’t recognize your marriage as being a legal marriage because your home jurisdiction doesn’t” is a bigger and more offensive problem that needs to be fixed.  Around 5,000 same-sex couples came to Canada, paid for wedding licences, and “got married”.  The line of argument put forward by the federal lawyer in this divorce case suggests that almost NONE of those 5,000 couples were ever considered legally married by the government of Canada, nor could they be based on current Canadian law.  That’s a problem.  My greatest concern is that if that lawyer’s argument is accurate, it’s a problem that won’t get fixed under our current government.

          • As I said, the gov`t lawyer probably asked the ladies` counsel why they would not get a divorce in their homeland just like a hetrosexual couple would do ?
             The answer he got was that they could not because their homeland said they could not divorce a marriage that they did not recognize as being legal—so the gov`t`s common sense antenna went up and said why do you need a divorce from a marriage that is not even recognized in your homeland ?The inexperienced lawyer should have known that there is very little room for common sense in the law.I suspect we will see a compromise proposal come forth from the Justice Ministry soon.

          • LKO wrote:

            “…but I still think the bigger issue is the legal argument that’s been made by a federal lawyer that the couple in question were never considered by Canada to have been legally married in the first place. ”

            Context is everything.  The couple in question were and are and forevermore will be “considered to have been legally married”, but for purposes of Canadian law only.  The context of the federal lawyer’s legal brief is an entirely different context – whether all marriages that are “legal” in Canada are “legal” everywhere and the federal lawyer (apparently) submits the answer is “no”.

            To adopt your phraseology, the federal lawyer is presumably arguing “to the extent a couple married in Canada have never resided here and reside in a jurisdiction that doesn’t recognize Canadian marriage law, the couple in question are not considered by Canada to have been legally married in the first place, but ONLY FOR PURPOSES OF THE LAWS OF THE JURISDICTION WHERE THEY RESIDE.

  5. Non-resident couples married in Canada, regardless of sexual orientation,
     can petition the Canadian courts for an ”annulment” on the grounds that their marriage is not valid in their country of residence.

    • Sure, but doesn’t an annulment essentially mean the marriage never happened?

      I don’t think it’s inconsistent for a couple to say, “We don’t want to be married any more, but we also don’t want our marriage to have legally never existed”.

  6. I will also note that it wasn’t just Cotler, it was a majority in the House of Commons, and they were responding to three Court of Appeal rulings.  Your tenor suggest you think this was some horrible thing foisted upon Canada by terrible Liberal elites.  You might also check popular opinion on the question–the majority are infavour of it.

    • That’s an old battle, in the rear view mirror now Dean.

      I don’t think the previous govt brought in the SSM  legislation knowing it was a mere Canadian souvenier, invalid.

      Obviously Irwin Cotler, Parliament and the Senate should have been considered SSDivorce at that time, because the divorce laws have not changed.
      Blaming Harper is ridiculous.

      • The no-divorce-without-residence is not being blamed on Harper.  The no-marriage-if-it’s-not-legal-in-your-country, however, is new.  Two different arguments.

        • The real crux is “get a divorce in your own country….oh, they don’t recognize your marriage…well we aren’t in the quickie divorce business so unless you become a resident, we don’t recognize it either”.  Think about it DeanP, how is it going to work?  Canada will alter the divorce rules for non-residents, then grant divorces and enforce rulings for contentious divorces regarding property rights, custody arrangements and support payments…..all for people who are non-residents and never even step foot in the country except to marry and divorce?
          Think of the lawsuits from US citizens when non-resident #1 defaults on their alimony payments and Canadian authorities don’t pursue them or worse when non-resident #2 abducts the dependant child that non-resident #1 was awarded custody of.

          • Uh.. how does that apply?  I can see the bit about “We won’t grant a divorce until you’ve lived here for a year”, I fail to see how that has any necessary relation to “Your marriage never happened.”

            It is, after all, entirely possible to *not be eligible for divorce*, but still legally married.  There was a time, after all, when in order to be eligible for divorce there was required some sort of proof of failure of the marriage covenants.Attempting to connect these two issues to protect the government is pretty sad.

        • Actually, that’s an old law Dean.
          Harper has nothing to do with the law being there, the Dept of Justice lawyer dusted it off for submission re: divorce of non-residents

          • Do you suppose the so-con wing is too strong for that law to be amended while Harper is in office?  There are surely instances where even the so-cons would say that the laws of other countries should have no bearing whatsoever on what Canada deems to be legal.

  7. Non-resident SS couples need to be assured that their Canadian marriage is valid in Canada.
    Harper did that today.

    The SS couple demanding a divorce must comply with Canadian law,
    10 months touring our beautiful country, or go for the quickie annulment.

    • Wilson, your repeated presence here indicates to me the CPC is legitimately concerned about the optics of this one. 

    • Non-resident SS couples need to be assured that their Canadian marriage is valid in Canada. Harper did that today.

      Did Harper really do that?  Really?

      The Prime Minister was asked pretty explicitly “whether the government considered the same-sex marriages of non-citizens to be legal or not” and he simply replied “The law recognizes same-sex marriage in Canada and the government is not going to reopen that issue”.  Well, to me, he didn’t answer the question asked.  

      Yes, the law recognizes same sex marriage in Canada as a concept.  However, the legal arguments in this case suggest that the law does NOT recognize the specific same-sex marriages of non-citizens (when their home jurisdictions do not also recognize SSM).  So, while “the law recognizes same-sex marriage in Canada”, does the law recognize, say, Dan Savage’s marriage in Canada?  ’Cause it seems to me as though if Savage files for divorce in Canada, that a government lawyer may well argue in court that he was never legally married in the first place.  So, how can Dan Savage “be assured that his Canadian marriage is valid in Canada” when Canadian government lawyers are specifically arguing that a similar marriage was never valid?

    • Except he didn’t, quite. Because saying that “the law recognizes same sex marriage in Canada” still leaves that gap for “But if you live somewhere else, we don’t”

      Whether that gets read into it depends on how concerned you are about the issue. If you’re a gay couple that’s been fighting for years to have your commitment recognized, you probably want that gap closed up so that there’s no loophole available for the people who would suggest your commitments are not as valid as other humans who get married.

      Other than that, I tend to agree.

      • If you’re a gay couple that’s been fighting for years to have your commitment recognized, you probably want that gap closed up so that there’s no loophole available for the people who would suggest your commitments are not as valid as other humans who get married.

        If the gap’s not closed, you also might want a refund on the marriage license you paid for, and the costs you paid for your civic ceremony, and you might have a beef with the jurisdiction who actively encouraged you to come to Canada to get married without telling you that if your home jurisdiction doesn’t recognize SSM then your marriage won’t have any more legal recognition, even in Canada, than if you had “married” back in Florida.

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    • I think this has worked out quite well.  Who knew before this case that there’s apparently a law on the books somewhere that essentially makes all of the marriages of the 5,000 foreigners who came to Canada to get married to their same sex partner moot.  Now that we know about this inconsistency, maybe it can be fixed.

      • This comment was deleted.

        • Why doesn’t Wherry’s liberal agenda include marrying same-sex couples from outside of Canada?

          Some “liberal” agenda!

          I’m calling you out Wherry! Why don’t you want foreign nationals to be able to marry the one’s they love in Canada if they can’t in their home countries??? How did the conservatives get to you!?!?!

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