A report of the position federal government lawyers are taking in a case involving the right of a foreign same sex couple who married in Canada to get a divorce, has put the legality of some Canadian same sex marriages in limbo.
Canada's laws on marriage and divorce are somewhat complex. While the federal government has jurisdiction under the Constitution over "marriage and divorce," the "solemnization of marriage" falls under provincial jurisdiction.
Any two people can be married in Canada provided they have the capacity to marry in the country or state they are domiciled in. But in order to be eligible to obtain a divorce in Canada, at least one of the parties must be domiciled in the country. Domicile includes residency for a period of at least one year.
In 2005, a lesbian couple came to Canada and tied the knot. They have now split up; one is now residing in the U.K. and the other in Florida. Although the U.K. recognizes civil unions, neither jurisdiction recognizes same sex marriage. The two cannot obtain a divorce in Florida or in the U.K. because their marriage is not recognized as legal in either place. And because neither of the parties are domiciled in Canada, they are unable to get a divorce in Canada.
Last June, the couple brought an action in an Ontario court. They are asking for an exemption from the Canadian domicile requirement on the grounds that their Charter rights to life, liberty and security of the person and to equality have been denied.
The panic began yesterday when the Globe and Mail first reported details of one of the legal arguments lawyers for the federal government are making. Department of Justice lawyers are taking the position that since the marriage is not recognized in the U.K. or Florida, the women were never legally married in the first place.
The couple are represented by Toronto family lawyer, Martha McCarthy. McCarthy has been involved in several high profile gay and lesbian equality cases and decisions in those cases ultimately led to Canada legalizing same sex marriage.
Now, gay and lesbian couples all over the world are worried that they are not really married. McCarthy told Digital Journal that she received a constant stream of emails yesterday; some of which read like "a law school exam question." They were from people who live in jurisdictions that don't recognize same sex marriage or moved from jurisdiction to jurisdiction and are now wondering if their marriages are legal.
Part of the problem that some people now find themselves was caused by officials who solemnized these marriages. We live in an age where McDonald's has to warn customers that coffee is hot and McCarthy is pretty sure that none of the foreign couples who came to Canada to marry, were ever told or warned they may never be able to divorce if their relationship broke down.
To add to the international panic, the Globe and Mail, that published no less than 15 articles on the subject yesterday, stated in their first story that the argument that these marriages are not legal was attributable to Prime Minister Steven Harper. This led to accusations that the argument was part of a plan by the Conservative government to end same sex marriage in Canada. In later stories, the Globe backed away somewhat from blaming Harper.
So who did approve the argument that these marriages were never legal in the first place? While McCarthy doesn't know, she told Digital Journal, I have a hard time believing that the position had not been approved a several levels.
McCarthy agreed that if the federal government can now come along and say these marriages were never legal in the first place, they can do so in other instances involving any marriage solemnized in Canada.
Yesterday, Harper said he was not familiar with the details of the case but would request them. He added that his government has no plans to revisit the issue of same sex marriage; something he has said all along.
Justice Minister Rob Nicholson is looking into the matter. Nicholson is quoted as saying, I will be looking at options to clarify the law so marriages performed in Canada can be undone in Canada.
Said McCarthy, We do need to clear it. People need to be reassured.