Gay Marriage Canada: Justice Minister Rob Nicholson Pledges To Clarify Law
OTTAWA - The federal justice minister says he will look at clarifying the law to ensure gay couples from abroad who marry in Canada can also get divorced.
Rob Nicholson says he will study options to make it clear that same-sex marriages "performed in Canada can be undone in Canada."
There are now doubts about the validity of thousands of marriages conducted in Canada for same-sex couples from the United States and elsewhere following a federal twist in a Charter of Rights case launched in Ontario by two foreign women seeking a divorce.
A legal brief filed by federal lawyers denies the women are even legally married, prompting critics to charge Stephen Harper's Conservative government with rewriting the rules on gay marriage to suit its right-wing agenda.
"I think it's the radical right by stealth," Liberal Leader Bob Rae said Thursday. "I think Mr. Harper is trying to placate a certain base in his party. But it's certainly not a base that's widespread in the country and I don't think it's right or appropriate or a fair-minded approach."
The couple, identified in court records only by initials to protect their privacy, were married in Toronto in December 2005 and separated two years ago. One lives in Clearwater, Fla., the other in London, England.
Their marriage is not recognized either in Florida or the United Kingdom. As a result, they are unable to obtain a divorce in their home cities.
The couple also faces a barrier to divorce in Ontario — a requirement that at least one of them live in the province for a year or more. They have launched a constitutional challenge of that provision in the Ontario Superior Court of Justice.
"They are prevented from severing the legal and psychological bonds of marriage in a way that other couples routinely take for granted," says their submission to the court.
"Without this, they cannot move on from this chapter in their lives."
In its filing, the federal government opposes the application for divorce, saying the women "are not legally married under Canadian law."
It argues neither woman was legally able to marry a person of the same sex under the laws of Florida or the United Kingdom. "As a result, their marriage is not legally valid under Canadian law."
The federal government plans to argue in a Feb. 27 hearing in Toronto that the case should be thrown out because there is no legal marriage to dissolve.
In 2005 the Liberal government passed legislation recognizing same-sex marriage after several courts across the country had declared the practice legal. An estimated 5,000 of the 15,000 or so gay marriages performed in Canada have involved foreigners, mostly American couples.
Prime Minister Stephen Harper said he was unaware of the details of the case Thursday morning, but stressed his government has no desire to revisit same-sex marriage.
"We have no intention of further opening or reopening this issue," Harper said in Halifax, where he made a shipbuilding announcement.
Harper's answer was more strident when asked the question later in the day in North Vancouver.
"The law recognizes same sex marriages in Canada and the government is not going to reopen that issue."
Nicholson echoed that sentiment in his statement.
But questions remained about the government's newly stated legal position: That foreign blessing of same-sex unions is required before Ottawa will recognize them.
"We had always assumed that those marriages were valid in Canada the way any other marriage performed in Canada would be valid," said Robert Leckey, a family law professor at McGill University in Montreal and president of Egale Canada, which supports gay rights.
"It seems to me a very disturbing and unexpected change in policy."
Lawyer Martha McCarthy, who represents the women seeking a divorce, called the federal argument "outrageous and embarrassing" given that Canada has been seen as a world leader on equality rights.
She said the government has delivered her clients an appalling and offensive blow.
"They thought they were coming to a country to get married that recognized their dignity and human rights, only to be secretly backstabbed now," she said.
"I'm hoping for some positive outcome in a co-operative way, preferably."
The NDP's Olivia Chow said Harper was sending out confusing messages about the government's intentions.
"You can't say that you support gay marriage and then have lawyers say that you don't in court," Chow said at a news conference at her Toronto office.
"I think Mr. Harper is hiding behind the law and using a back door way to say to these loving couples: 'Sorry, we no longer recognize your marriage.'"
If the flip-flop was truly a misunderstanding, said Chow, the prime minister can easily resolve the matter by instructing the government's lawyer in the divorce case to use a different argument.
— With files from Romina Maurino and Joan Bryden
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First Posted: 01/12/12 09:17 AM ET Updated: 01/13/12 11:10 AM ET