‘Their marriage is not legally valid under Canadian law’

by Aaron Wherry

In court, the Harper government is apparently arguing against the legality of some same-sex marriages conducted in this country. Asked about the Globe story detailing this situation, the Prime Minister stuck to his previous public stance.

But speaking in Halifax Thursday, the Prime Minister said the issue was not on the agenda for his majority Conservatives. “We have no intention of further re-opening or opening this issue,” Stephen Harper told reporters when asked about The Globe and Mail’s report…

“In terms of the specifics of the story this morning, I will admit to you that I am not aware of the details,” Mr. Harper said. “This I gather is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking them to provide more details”

Bob Rae is unimpressed.




Browse

‘Their marriage is not legally valid under Canadian law’

  1. This is only about foreigners married here. No way that same sex marriage rights for Canadians are in any jeopardy from the Harper conservative base.

    No way. Just like there is no way Harper would allow the divisive subject of abortion to be put onto the national agenda for debate.

    Like SSM, abortion is a settled matter, and Harper has no intention of changing anything here. Just ask our astute media pundits, who have been telling us this for years now.

    • Okay, I am going to wave my magic wand and make you in charge….what would you do with this debacle.  You have a standing Canadian divorce law that says you must be a resident for one year before being granted a divorce in Canada; you have non-citizen same-sex couples who were married here and cannot get a divorce at home because their marriage is not recognized as valid there…what would you do?  Would you demand that they remain in the country, unemployed for one year on a special immigration permit so they can get their divorce?  Would you change the countries divorce laws?  What would you do?  You assume this problem was Harper’s making but Martin passed the law.  Maybe it was a “little gift” he left behind.

  2. Ugh.

    This position probably won’t clear the Oakes Test, so that’s a comfort, at least. But it’s still horrible.

    • Right, and there is no possibility that Harper will just ignore court rulings all the way to the Supreme Court.

      Actually, given that in his first day on the job he eliminated the dreaded program that funded Charter challenges, who exactly will have the $ to go all the way to the SCC on this?

      I know, I know, the affected community will pony up the money through an extensive series of fundraisers. (Hope no foreign money is involved!)

      This fundraising will take place alongside an urgent and incessant series of appeals by the CPC to their social conservative members to donate even more to stop SSM foreign terrorism before its too late.

      (Of course the message from our media pundits will be that they remain impressed with the new, moderate, non-ideological, agenda-free Harper.)

      • One can’t “ignore court rulings all the way to the Supreme Court”.  I don’t think that’s even metaphysically possible.  The government might appeal court rulings all the way to the Supreme Court, but there’s no way to both ignore the ruling and get it before the SCC.

        • You mean like with the Wheat Board?

          (By “ignore”, of course, I mean “proceed to do exactly what you want while appealing adverse court rulings.” )

        • The point is Harper does not respect court rulings.

          • Can we really say that in this case before there’s been a court ruling?

            Harper seemed to have had no idea that this was happening until questioned about it. If the Prime Minister says he had no idea what a couple of lawyers somewhere were arguing in some civil case he’d never heard of, I’m willing to take him at his word until presented with evidence that contradicts his position.

  3. Ok. How long do I have to wait for him to reject the premise of the assertion ?

  4. Mr. Wherry, all three of your links are going to the same story at the moment, and that story doesn’t mention Bob Rae as far as I can see.

    • Fixed the Rae link.

      Don’t think I can get back the original Globe story because of how the Globe’s website works (original stories seem to disappear once an update is filed).

      • Thanks!

  5. OK. I’m pro gay marriage, but I’m struggling to understand this one. They wanted a divorce, but were told that their marriage isn’t legally valid because gay marriage isn’t recognized where they live. What difference does the Canadian interpretation on if they are married or not have? Can Canadian divorce court even legally enforce a divorce settlement on people who don’t live here?

     From the G&M story:

    The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.

    Let me get this straight. These people live in jurisdictions which do not recognize same sex marriage. Fine. They came to Canada & had a wedding & now consider themselves married. Fine.
    But now they expect their home jurisdiction to respect their gay marriage because it was performed somewhere else? Huh?

    Nothing the Canadian government has done here has thrown these couples into legal limbo. They have been there from the moment they got married and went back to live in their neanderthal jurisdictions

    • So you don’t think that people should be able to get divorced in the jurisdiction where they got married?

      If we are letting them come here and get married, we should be letting them get divorced here, too.

      • Well…if there is no jurisdiction anywhere that recognizes the legality of their marriage…why do they need a divorce? Other than for a financial settlement? Which is why it begs the question, can that settlement be enforced?

        • They need a divorce for the same reason any other couple does: official recognition of the end of their relationship, with all the attendant changes of legal status that confers.

          • This seems like a Monty Python moment…I see San Diego Dave is already having one below as well.

            “We’re looking for a divorce!”
            “You’ve already got one.”
            “Are you sure we’ve already got one?”
            “Oh yes. It’s verra nice!”

            (To his buddies): “I told them they already got one!” (Laughter ensues…)

          • They’re not already divorced. Nullity isn’t the same thing as dissolution. (Think voluntary annulment, versus divorce.) This is a genuinely significant legal point.

          • @TheAVR:disqus 

            Just to be clear, I don’t have a problem with granting this couple a divorce, for symbolic reasons, if that’s what they want.

            That said, I just wanted to point out that while it’s true that nullity isn’t the same thing as dissolution, it’s simultaneously true that nullity makes dissolution UNNECESSARY.  If the marriage never technically existed, then there’s nothing to dissolve.

          • @Lord_Kitcheners_Own:disqus

            What about the financial aspects LKO? What if, for example, they were a single-income family and one of them wants alimony? That’s the messy part.

          • @john_g2:disqus 

            Sure, that’s the messy part, but if (big if) the law actually works the way the argument is being framed, then this couple never got married.  If they never got married, then the division of property, and issues like alimony or child support are personal issues, not the business of the state.  

            Now, ordinarily there’d be issues of “common law” marriage, and a couple might have recourse to the state to help settle the dissolution of the relationship and the financial matters between them even if they were never legally married.  However, this is a couple composed of two people who are not Canadian citizens, and who have never lived in Canada.  If the argument that they were never legally married is valid, then if they do have “common law” recognition of their relationship by some state it’s not Canada.  

            If this couple legally wed here, then I think there may be a role for Canadian courts in the dissolution of their relationship even if their home jurisdictions don’t recognize their marriage.  However, the argument is apparently that they were NOT legally married here; that CANADA does not legally recognize their marriage.  If (again, big if) CANADA considers their marriage to be null, then there’s no possible way, imho, that Canadian courts could have any standing to intervene in the dissolution of their relationship or the division of their property.  If it’s determined by the courts that the marriage never actually happened, then I fail to see how a Canadian court could possibly intervene in a legal dispute between two foreign citizens who have never lived in Canada.

          • @Lord_Kitcheners_Own:disqus 
            If it’s determined that the marriage never happened, they’ve got a decent case against the Canadian government for providing them a marriage licence, with damages being all costs involved for obtaining the licence as well as finding out it doesn’t mean anything, and probably additional damages depending on if they’ve signed any contracts as a married couple that they now have to make restitution on due to their status not being officially recognized where and when it was granted.

          • @Thwim:disqus

            Yep. I’d go along with that. Under these circumstances, it was a mistake to grant the license in the first place.

          • Yes but it is a change is legal status for a marriage that was never recognized in your home state but only in Canada and a divorce with settlement stipulations that would only be enforceable in Canada.  I think that is the big issue here.  The Canadian courts would be handing down divorce decrees to non-citizens and non-residents with no way to enforce any of the rulings.  Now that is fine if there are no children involved and it is only property but what is going to happen when it comes to issues of custody of children.  I say if these people want recognition of a Canadian marriage and divorce, make a commmitment to live here or somewhere else that recognizes and honors their life choices.

          • If the marriage was never recognized where they live, then it’s impossible to change their legal status no matter what happens.

      • Oh they can get divorced here if they live here a year.

    • I’m confused about this.  Was the marriage licence a sham from the start, given that the couple couldn’t be legally married in whichever Republican hell-hole they reside?  What would that say about marriages between interracial couples from Texas circa 1966, had such marriages been performed here?

      • It’s a fair question. I think it’s safe to say that this practice of allowing foreigners to get gay marriages here was a “devil is in the details” part of legislating gay marriage that was just never thought through enough.

        But I don’t think England (where one of them lives) qualifies as a “Republican hell-hole”. England does not have gay marriage, but they do have civil unions.

        • Absolutely agree, John.  Part of the problem is that when the Divorce Act was originally drafted (especially the one-year residence requirement), same-sex marriage wasn’t on anyone’s radar screen.  And note that this whole thing now is being raised via a Charter challenge to that requirement.

        • I’m sure David Cameron has a bit of the Santorum in him.

  6. I’m trying to figure out where in the Divorce Act it says that your marriage has to be recognized in your place of residence for you to get divorced in Canada, but I’ve not been able to find anything.

    • Law isn’t solely in statute. This is an…aggressive…interpretation of an international law principle on reciprocal recognition, if I’m remembering that class right. And then filtered through the residency bit oddly. (As near as I can figure, anyway, not practicing family or international law myself.)

      • …Can you tell I come from a country that follows Civil Law?  My first reaction to this kind of this is always to look at the legislation.  >_<

      • How quickly can you get a divorce in Canada?  I believe this is the crux of the problem.  If the couple lived in a place where their marriage was recognized, they would get their divorce at home but because they have to come to Canada to get divorced that involves being in Canada for a signifcant amount of time and that does not work out for anyone.  Canada, therefore has a problem with “marriage tourism” for people who cannot get divorced at home. 

        • Exactly.


    • I’m trying to figure out where in the Divorce Act it says that your marriage has to be recognized in your place of residence for you to get divorced in Canada.

      It’s a bit circular and confusing, but I think the issue is that the lawyers aren’t just arguing that the couple’s marriage isn’t recognized in their place of residence, they’re arguing that it’s not recognized in CANADA either.  

      I don’t know if this interpretation is accurate or not, but I believe their reasoning is that Canadian law (according to the argument) only recognizes marriages performed in Canada between two foreign citizens if the home jurisdictions of those citizens also recognize the marriage.  I don’t think the lawyers are arguing that the couple are legally married but can’t get a divorce because their home countries don’t recognize their marriage, they’re arguing that the couple can’t get divorced because their marriage never legally happened in the first place.  I believe the argument is that notwithstanding the fact that the couple came to Canada, were granted a license to wed, and “got married”, that the license never should have been granted in the first place, because Canada does not recognize marriages performed in Canada between two foreign citizens unless their countries of residence do as well.  Whether or not that’s the way the law actually works is another question, but I believe that’s their argument.

      • Aren’t their marriage performed by employees of the state – municipal, according to the federal definition of civil marriage?  If we are now claiming that Canada does not recognize the marriage of two foreign citizens unless their countries of residence do as well, some cities will be sued, non?

        • Sued for pretending to legally marry couples without actually legally marrying the couples? I suppose that’s possible.

          If the courts rule that the marriages were never legal though, I presume the civic officials would have a pretty good case if they simply argue that they acted in good faith, that they believed the marriages were legal at the time, and that they were just as surprised by the courts’ rulings as the couples were.

          Unless people knew that the marriages weren’t legal but went through the motions of issuing certificates and performing the marriages anyway, I fail to see how they could be held responsible for failing to anticipate that a court might one day rule that the marriages weren’t actually legal.

          • Ignorance of the law is no excuse under the law.

          • That old saying doesn’t really apply here, does it?

            Not knowing something is illegal is not an excuse for doing something illegal, true. However, not knowing that a marriage would one day be ruled invalid by a court is DEFINITELY a defence against a charge that you defrauded the couple by “pretending” to marry them. For one thing, you weren’t “pretending”. You actually thought you were marrying them, and the other 5,000 similar marriages that your colleagues officiated over seem to indicate that you’re not the only one who sincerely believed that that was the case.

            Now, if the official were being charged with the act of performing the marriage itself (as in a charge of “performing an illegal marriage”) then perhaps ignorance wouldn’t be an excuse (though even then, the fact that over 5,000 marriage licences were issued to people in this situation certainly suggests that EVERYONE thought the marriages were legal, and it seems overly draconian to hold some poor marriage license office worker responsible for performing an “illegal marriage” along with thousands of his similarly ignorant colleagues). However, in the case of a lawsuit for fraud, I’m pretty sure the applicants would need to show that the official KNEW that the marriage wasn’t legal and was only PRETENDING to marry the couple (hence the fraud). I don’t think said officials would need to have anticipated in advance how a federal court might rule in the future on the legality of a marriage of two foreign citizens married in Canada in order to avoid a charge of fraud. I’m almost certain that a prerequisite of being found guilty of fraud is actually knowing that you were defrauding someone, and given the over 5,000 marriages that were performed, I think the officials involved with this particular wedding could pretty easily establish that they had NO IDEA that the marriages weren’t actually legally valid (if they are indeed eventually found to not be legally valid).

      • Circular and confusing indeed. What if they had been living in Canada when they got married, and then moved to a foreign country that doesn’t recognize SSM?

        • Well in that case I believe they would get their divorce in their own country.

          • sorry….misread your comment….I think they would have to live in Canada a year to get a divorce here.

      • The problem seems to be that Canada does not offer “quicky” divorces so they have no way to deal with non-citizens coming here to end marriages that aren’t acknowledged as legal in their own countries.  Hence, they claim the marriage isn’t valid in Canada if it isn’t valid in their own country.  How do we fix the problem?  These women obviously can’t stay in Canada for a year to get a Canadian divorce so we will have to stop marrying people who come here for a “quicky wedding”?

        • Even more complicated, what if these women DID stay in Canada for a year to hash out the divorce proceedings. And the House goes to spouse X and the dog to spouse Y, and spouse Y get $300 a month in alimony. It seems to me that said divorce agreement isn’t worth the paper it’s printed on the moment they leave Canada. So, if the House in Florida is under the name of spouse Y, and the divorce ruling is that it should go to spouse X, well, I wish spouse X luck in getting the deed signed over once they get back to Florida, because if spouse Y doesn’t want to comply, it ain’t going to happen. That’s the biggest problem. How do you enforce the divorce settlements once they leave Canada. Unless we’re going to send the RCMP down to Florida to try to extend Canadian jurisdiction to the sunshine state, even if they get their divorce it won’t be legally binding in any meaningful way.

  7. This comment was deleted.

    • As in “a waffer-thin mint Monsieur?”.

    • I think this is going to blow up, actually, solely on the basis of seeming particularly mean-spirited and arbitrary, on an issue most of the country thought was settled positively.

      • This comment was deleted.

        • Mean spirited and arbitrary worked great for AVR’s team in the last election.

        • I always find it annoying when people make assumptions about me that are completely wrong, so I’ll point out that AVR is usually supportive of Conservative policies (or at least he has been in the past), so you shouldn’t be lumping him into that category.

        • Lol.  You are very confused about AVR’s loyalties.  Despite his ability to think, he does generally cheer for your neanderthal team.

      • I seriously doubt it, I don’t think there’s anything mean-spirited about it.  These are people in foreign countries who chose to come to Canada in order to get something they could not get at home, and so doing put themselves in a strange legal limbo by choice, and now they want to use Canada to fix the problem.

        Also, Ireland didn’t grant divorces to anybody until 1995.  When you get married, they still have that line “til death do us part”.

  8. I’m anti-gay marriage, but not for this twisted interpretation of the law. The law as it was intended was for Canadians to declare equality of sexuality in marriage, regardless. It doesn’t matter where you’re from. Using the logic used here, couldn’t we conceivably declare marriages between different religions null if it was illegal in two people’s home countries?  What about interracial marriage? 

    As far as I know, Canada doesn’t stand for discrimination, and the federal justice department has tried to push this through the backdoor. The courts should rule against this. 

    • It is all about the dissolution of the marriage….in our country you have to be a resident for one year before you can get a Canadian divorce.  If you live in another country and got married in Canada, you get your divorce in your home country…if your marriage is not recognized in your home country….we have a problem……do you move to Canada for a year (unreasonable) or do we invalidate the marriage (on the grounds that it was never recognized in your home state and therefore you can’t get a divorce there)……now we ponder the situation.

  9. A couple of interesting points made from the Twitterverse: 

    “@kady: What if *one* of SSM couple’s countries recognized SSM, but other didn’t? What if not when marriage happened, but does *now*? ”‎”@darcyrheault: So now women can’t get a driver’s licence, if their native land forbids it? #cdnpoli #ssm”

    from Globe and Mail: “One of the benefits that marriage gives to families is security and clarity,” Mr. Wolfson said. “They don’t have to deal with a tangle of uncertainty. If the Canadian government is serious about trying to cast doubt on people’s marriages, it not only insults their dignity and hurts them personally, but it raises all sorts of complex legal and economic questions for everyone who deals with them – employers, businesses, banks, and on and on.” (http://www.theglobeandmail.com/news/politics/despite-legal-about-face-harper-has-no-intention-of-reopening-same-sex-marriage/article2299574/page2/)

    To those who don’t think this is a problem because it’s foreign couples: what if one person is Canadian? How do you think our internationally reputation will be effected? Given the turbulence in policy over the last few months, do you think Harper and Co. are really making a better name for us on the world stage? Attawapiskat scandal, Kyoto embarrassment, not being chosen to be on the UN Security Council, it’s just one stupid act after another…

    • Well the driver’s license example is silly. Of course they could get a driver’s license. If they live here. You can’t jump to a foreign country to get a driver’s license like you can to get married, and then go home and have it recognized.

      None of this affects couples who married here and stayed here. The people who married here and then went back to places which don’t recognize SSM are presumably already in a legal quagmire with respect to recognition of their status, etc.

      • It’s not a silly example at all. If a woman gets her license here in Canada and then wants to drive somewhere in a country where that is illegal (say she is visiting her husband’s family), this precedent says she should be locked up. It’s legal for a woman to drive here, but not there. 
        I know plenty of couples who were born and raised in Canada, some have even gotten married, and then moved to different countries for a plethora of reasons. It doesn’t matter that they were only married and in Canada briefly – we granted them legal right to call themselves married, and we gave them a certificate to prove it to others. It’s pretty simple, unless of course you’re looking for reasons not to allow people to be married after they were married.

        • It’s not a silly example at all. If a woman gets her license here in
          Canada and then wants to drive somewhere in a country where that is
          illegal (say she is visiting her husband’s family), this precedent says
          she should be locked up.

          Come on. Seriously? You don’t really think you can force, for example, Saudi Arabia, to not lock a woman up (or worse) for driving just by giving the woman an Ontario driver’s license do you?

        • If a woman gets her license here in Canada and then wants to drive somewhere in a country where that is illegal (say she is visiting her husband’s family), this precedent says she should be locked up.

          What?!?!?!  No it doesn’t!  That doesn’t even make sense.  

          If a woman visits a country where it’s illegal for her to drive, and she drives there, then the LAWS OF THAT COUNTRY say she should be locked up.  Whether or not she has an Ontario drivers license is entirely irrelevant.  And whether or not the couple in this story is granted a divorce is even less relevant than that!

        • Uh. That’s how it is now. Legal for her to drive here, not there. She’ll probably get locked up if she does, yes.

          This ruling has nothing to do with that.  What it means is that if she lives where it’s illegal for her to drive, and tries to get a drivers license over here to take back there, we can’t give it to her. 

          Not that it really matters, because even if we did, so far as I’m aware no country recognizes another country’s drivers license for more than a few months.

          And if she tries to get the driver’s license here and intends to stay here, that’s also fine.  The ruling is suggesting that if the couple here wanted their marriage to be recognized and valid, they should have moved here or to a state where it was.

      • JG – What possible skin is it off our nose, seeing that SS is constitutionally protected, if people come here to get married when their own countries prevent them? The fact that they have to go home and battle for their rights at home is simply none of our beeswax. So, unless the govt can provide evidence that other countries are actually objecting to our allowing their citizens to flout their laws and customs,or that it’s an unreasonable burden on the tax payer,  i’d say this is a weak argument. Even then, if it is part of our human rights package that our govt trumpets all over the world should we just buckle under? Or are you suggesting our govt should pick and choose which rights it will defend and which laws it will obey?
        Silly question really – it is the Harper govt after all these days, not the govt of Canada.  

        • Which rights did our government not choose and which laws did our government not obey ?

          • You find nothing dissonant about the govt trumpeting our record on HRs all over the world[ including gay rights] but then interfering in the pursuit of those rights by other people who don’t have those rights? Remember it is a part of our constitutionally protected rights – that’s law. True we haven’t as far as i know broken the letter of any law ,nor are they obliged to promote SS abroad, but we may be about to crap all over the spirit of our own law.
            I’m not saying you have to like it or even the govt for that matter. I am saying that it is our law and therefor bizarre to be thinking of turning people away who come here for its symbolic protection.
            Have the courage of your convictions and get the law changed if you think it’s wrong.

          • If you have evidence that our gov`t has been encouraging same-sex couples, from countries that do not allow same-sex marriage, to come here and get legally married then show me.

            You talk about the spirit of the law—-I don`t think that when Paul Martin`s gov`t passed the same-sex law that they intended that Canada would become the wild west of same-sex marriages. The way your comments are worded one would think that Canadian Embassies are busily encouraging homosexuals from all over the world to come to Canada and get themselves hitched, and hey if things don`t work out—-well, come on back and we`ll set you up in the divorce court.

          • Only a moron like you could construe my comments that way.

          • Only a moron like you could construe my comments that way.

          • Hey, I heard you the first time–no need to repeat.

            In 2 separate comments you said that our gov`t  ” trumpets ” our record on human rights abroad particularly those on same-sex marriage.

             I construed your comments to mean that you believe our gov`t is encouraging same-sex couples to come here for a quicky marriage and then for a quicky divorce if needed. Do you think they were trumpeting abroad just to give our wedding planners and divorce lawyers some business ?

            By the way, it`s a well known fact that when a liberal loses an argument he resorts to name-calling.

          • Calvin – sorry about the name calling. But i find more then a few people like to deliberately misconstrue what is actually written, and it’s not the fist ime you’ve gone there either.
             
            …trumpeting our record on HRs all over the world [including gay rights]…no particular.
             
            The next sentence or two could be clearer yet you don’t go there. Badly phrased but not what you choose to highlight. I’ll promise to write more clearly if you’ll promise not to misquote me.

        • Hang on, hang on. SSM is not constitutionally protected. If you’ll recall, Martin tried to let the Supreme Court “legislate” gay marriage for him as a Charter Rights issue so he didn’t have to take a controversial position in Parliament, and they refused to so, so he sucked it up and passed the law himself.

          As to whether we recognize the marriage or not afterwards for foreigners who treated us as a gay Las Vegas…if the only reason they are coming back is to get a divorce, only to find out they aren’t married anyways, I’m having a hard time mustering too much sympathy. Though I do agree that the couple has legal grounds to sue to get back costs of their marriage license & any other associated costs.

          • How can the government issue an invalid marriage license? 

          • That’s a perfectly good and valid question & one I share.

          • I guess that should be marriage certificate…

          • I’ll take a guess…if the married couple should decide to relocate to Canada or any locality that recognizes same sex marriage…then the license is automatically valid?  Also, should their own state pass same-sex marriage….they are married.

          • It’s not invalid if they stay in Canada.  It only becomes invalid when they take up residence elsewhere.

          • They can’t stay if they’re tourists.  Think Peter MacKay in Mexico.

          • They can get a visa. And then they can get perm residence. Thousands of people come and stay for good, every year.
            I don’t think the people doing marriages are also responsible for monitoring immigration or residency status. Or even legally allowed to do so.

          • http://lawconnection.ca/index.php?q=content/same-sex-marriage-backgrounder

            Are you sure about that?

            Everything depends on how you frame it; you see as a gay LV, maybe they see it a a beacon of freedom.
            Agreed on that point. I don’t have a problem with seeking out symbolic SS marriage, i do find it odd that they would treat something that is largely symbolic if it isn’t recognized in the own country as being somehow legal by proxy when it comes to divorce.
            I wonder what our law really says about non resident rights?

        • I am guessing this has nothing to do with flouting laws and customs in the person’s own country and everything to do with the logistics of dissolving the marriage when it is over.  If it takes a year to dissolve the marriage and if the people have to reside in Canada during that year because their marriage is not recoginized in their own country/state, we have an issue.  What we need to do is either provide for ‘quickie’ divorces or not allow ‘quickie’ marriages.  My guess is this is the way we avoided ‘quickie marriages’ for non-residents…but not really.

          • That sounds reasonable until you consider that we are apparently also involved ni at least one similar case in the UK. Maybe it’s coincidental, maybe not. To me this sounds like another attempt at narrow casting by this govt; they’ve tried it before, i’m sure they’ll try it again.

          • A new blogger just asked how a Canadian court would deal with the division of property, etc. for people who do not reside in the country and are not citizens….how would anything decided during the divorce be enforceable by Canadian law….good questions.

  10. This I gather is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking them to provide more details.

    I want to make sure I understand this properly.  When the Prime Minister refers to the people who are challenging the couple’s right to a divorce as “Canadian lawyers” does he mean “lawyers who work for the Government of Canada”?  The way the PM has phrased that makes it sound like some lawyers somewhere (who happen to be Canadian) have interpreted the law this way, and the PM doesn’t really know much about it, and needs to find out more.  And that could be the case.  And if so, fair enough.  However, if these are federal lawyers, and it turns out they’re simply implementing the policy of the federal government, then that’s something else entirely.

    Maybe I’m being paranoid, it’s just that the way the PM refers to them as simply “Canadian lawyers” struck me as odd, and made me think that perhaps the PM was attempting to create rhetorical distance between his government, and a group of lawyers who work for his government.

    • They are federal lawyers, but my belief is that this isn’t Harper’s doing.

      The whole gay marriage thing is too much of a political hot potato for Harper to want to be involved in any fashion — even through the backdoor (no pun intended), and he’s smart enough to know that.

      Now.. Rob Nicholson, on the other hand..

      My bet is the directive came down from Justice to do what can be done within the law to discourage homosexuals from using Canada as a “marriage-haven” and Mr. Harper got blindsided — so he’s trying to put as much distance as he can between himself and this issue as fast as possible.

      Of course, I could be mistaken about that..after all, it wasn’t that long ago that the conservative party specifically reaffirmed the part in their constitution about wanting marriage to be defined as only between a man and a woman.

      • Yeah, I tend to think Harper had nothing to do with this either.  

        In fact, having not read the law in much detail, I’m not even sure that ANYONE in Harper’s government necessarily had much to do with this.  Depending upon how the marriage laws involved are written, I don’t discount the possibility that the lawyers involved came to this interpretation without any direction from above whatsoever.

  11. The Star article says that ”the New Democrats first got wind in the fall of what the government was up to and raised it in the House of Commons during question period on Oct. 6.”

    So the question to Mr. Harper, ought to be “Why don’t you know what the Justice Department lawyers are up to? Does your Justice Minister?”

    Perhaps a reporter could ask that later today at the BC Shipyards media event.

    • “Perhaps a reporter could ask that later today at the BC Shipyards media event. ”

      Thanks for the luncheon laughter!

    • I almost asked what the government’s answer to the question was back in October.  Then I remembered, Question Period is about asking questions.  One could wait until Hell freezes over and not get an actual ANSWER.

  12. Meanwhile…. there will be 11500 jobs created at the shipbuilding peak, and a guaranteed 30 years of stability from the 25 billion contract for those on the East Coast. This will be a tremendous boost to a part of the country that needs some optimism. 

    Meanwhile….2 women, one from Florida and one from UK came to Canada 5 years ago because would allow them to legally announce their intention to devote themselves to each other for their remaining days. Things didn`t work out. Their home countries still don`t recognize same-sex marriage so they would now like to tie up our court system in divorce proceedings to escape from a marriage that is not even recognized in their home(s). Unless this is just a stunt these women and their supporters are pulling, I would suggest their time would be better spent lobbying their home countries to recognize their marriage so they could then divorce there.

    The fact that the media want the second story to be the front page one and to downplay the first one exemplifies the distance between the average folk out there and the $hit-disturbing media.
    This can only be good news for Harper.

    • Yay for shipbuilding!

      But what about divorce lawyers?  They deserve to eat too!  If Wedding Planners can make money off of non-resident weddings, why can’t lawyers not make money off of non-resident divorces?

      That’s a lot of jobs we are talking about here!

      • I`m having trouble figuring out what is sarcasm and what is serious on this confusing subject. I`ll assume sarcasm but even there, it`s difficult for me to feel badly for the lawyers.

      • Are these women willing to stay in Canada a year to get a divorce and is the immigration minister willing to let them stay?

    • Shiny objects need love too!  Good point!

    • Oh Canada
      Our home and native land
      True patriot love 
      In all they SONS command

      Whoa…… that’s sexist! We have to consider changing the words to the national anthem here……

      • …you liquored up tonite ?

      • Of course that’s nothing a member of the Conservative caucus would want us wasting time on…

  13. I believe I heard the phrase  – “what the Canadian Solicitor General is arguing’ this morning.

  14. Events, my dear, it’s always the events…

  15. I think the more practical problem from the perspective of a Canadian court would be that they have no real jurisdiction. Both of the parties in the case the globe cites live in England and Florida. As a result, the proper legal forum to deal with divorce proceedings and the division of property and any related spousal orders would be where the couple were domiciled. That would be either Florida or England. The enforcement of extra territorial orders and judgements is something of a nightmare. From a slightly more self-interested perspective why the devil should the tax payers of Canada be funding a legal system to settle the disputes of foreigners with no real ties to our country?

    • I do not think people have given any thought to issues that might come about should a divorce between two non-citizens & non-residents be contentious.  The Canadian courts would be asked to make rulings on matters with no way to enforce the findings.  What if children were involved?  Suddenly our courts are deciding custody issues for people who are US citizens and never come to Canada.  How would be liase with social work agencies?  What about enforcing payment of child support?  Would we go after deadbeat parents for non-support in Florida?

Your email address will not be published. Required fields are marked *