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Government Has Trouble Vowing to Gay Marriage

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On Thursday morning, news broke that in a filing before the Ontario Superior Court in a same-sex divorce case, the government asserted that same-sex couples wed here are not legally married if their union would not be recognized in their home countries. On Thursday afternoon, the government announced that it would address the situation of same-sex couples unable to divorce here, but did not actually declare that it viewed them as legally married. On Friday, Justice Minister Rob Nicholson declared that the government viewed such unions as valid, but blamed the situation on the previous Liberal government by saying, "This is a legislative gap left by the Liberal government of the day when the law was changed in 2005."

While it certainly would be a convenient excuse to blame the government in which I served for this situation, the minister's contention simply does not stand up to the facts.

First and foremost, there was never a question that these marriages were valid until the filing of the government before the Ontario Court. Simply put, the validity of these marriages was not in question a week ago, let alone in 2005 -- the government's filing created the issue and now the government is seeking to do damage control to contain the fallout from its mistake. Certainly, legislation to enshrine the validity of such marriages is welcome, but has really only been necessitated by the government's court filings.

Second, there is no legislative gap -- it is not as though consideration of the Civil Marriage Act ignored all discussion of divorce. Indeed, the Act actually amended the Divorce Act to modify the definition of spouse in order to accommodate same-sex divorce.

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.

Briefly, the argument of the government here is that the only valid marriages of non-residents in Canada are those that would be recognized in their jurisdictions of origin. Certainly, if this were the case, why would Canadian authorities authorize all these marriages for all these years to begin with? And would not the opponents of gay marriage have asserted this from the moment the City of Toronto first handed out licenses to same-sex couples in 2003?

Such a contention impugns the status of not only the 5,000 or so same-sex couples wed here since the legalization of same-sex marriage, but it also opens the door to other challenges, even for some heterosexual couples. For example, in Saudi Arabia, women cannot marry non-Muslim men without official permission. Query: Is the Canadian marriage of a Saudi woman to a non-Muslim man absent official Saudi permission now also nullified? Is the interracial marriage of a South African couple hereby invalidated because the apartheid regime prohibited it? It is certainly curious, to say the least, that this alleged legal principle is being advanced for the first time in the case of a same-sex marriage.

While I take Prime Minister Stephen Harper at his word that he has no intention of re-opening the same-sex marriage debate, it is difficult to square this with the government's position in this case and another in which it is fighting against the Canadian recognition of a British same-sex union. And, indeed, why did the government's statement of Thursday afternoon only indicate it would address the residency issue but not go so far as to declare the marriages valid?

Simply put, the government created an issue where none existed and now seeks to blame the Liberals. Moreover, it has yet to explain how the Minister of Justice can contend the government views such marriages as valid when a lawyer for the Department of Justice filed the contrary view in court.

Does the government plan to amend its argument? Will they say the lawyer acted without authority?

Surely, there is a debate to be had in Parliament about the residency requirement for divorce. We can imagine that for couples from abroad -- gay or straight -- it may be nearly impossible to garner status for a year here, or one might be prevented by visa restrictions from working while here such that a divorce is cost prohibitive.

Certainly, a policy decision in this regard has important consequences for immigration law, tourism revenue from those who seek to marry here, and the overall use of judicial resources spent addressing divorce cases.

As President of Egale Canada and McGill Law Professor Robert Leckey put it yesterday, "What's plain is that, even after a big victory such as same-sex marriage, equality can be eroded in incremental, bureaucratic ways." Canada has had a reputation of being a world leader when it comes to recognizing the rights and equal status of gays and lesbians. Now is not the time to be undermining equality and turning back the clock, or blaming others for one's own mistakes.

Irwin Cotler is the former Minister of Justice and Attorney General of Canada and a Professor of Law (Emeritus) at McGill University. While Minister he proposed the Civil Marriage Act, legalizing same-sex marriage in Canada.