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Irwin Cotler

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Gay Marriage? Yes. Fair Divorces? No.

Posted: 02/27/2012 7:31 am

The federal government last week introduced C-32, the Civil Marriage of Non-Residents Act, legislation prompted by the same-sex divorce case of a lesbian couple in which it was contended -- by the government -- that the marriage was never valid because the union was not recognized in the home jurisdiction of either spouse. Whereas all that is necessary is for the government to withdraw its claim in court, it has instead introduced legislation to clean up its mess but in the process only complicates matters and may even give rise to a Charter challenge.

Simply put, there was never any question that same-sex marriages of non-resident couples were valid until the government's filing before the Ontario courts. The provinces handed out licenses and Canada not only solemnized, but indeed celebrated, these unions. Moreover, Canada sought to market itself as a wedding destination for same-sex couples and trumpeted its marriage equality laws on the international stage.

It was the position of the federal government that non-resident couples were validly married, a view shared by the provinces performing the marriages and certainly by the newlyweds themselves. The government's court filing suggesting otherwise has yet to be fully explained, justified, withdrawn, or amended -- and in fact remains scheduled for arguments this week.

The crux of the government's argument before the court is that marriages are not valid unless they are recognized in the home jurisdiction of the couples -- an idea based in principles of common law that, for the most part, were only relevant in family law with respect to anti-miscegenation (inter-racial marriage prohibition) laws.

Yet, Canada has not strictly enforced these and it was the position of the government in which I served that such arguments would not hold with respect to same-sex couples in light of the Civil Marriage Act, which plainly states, "For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex."

Indeed, lest there be confusion on this point, the contention is that the couple in the case before the court -- comprised of one spouse from the U.S. and one from the U.K. -- cannot get married because neither the U.S. state in question (Florida) nor the U.K. recognizes gay marriage. But to the extent that we are not seeking to invalidate the marriages of all British-American couples performed in Canada, the government is seeking to void this marriage solely on the grounds that the spouses are of the same sex. This is not permitted under the current law, and the government should withdraw this discriminatory argument and thus close the matter on this point.

Instead of resolving the problem before the courts, the government has proposed new legislation. While the proposal makes it even clearer that such couples are validly married and always were, it establishes different divorce procedures for same-sex couples in a way that is highly problematic.

Currently, divorces may be obtained by couples living separate and apart for one year, and sooner in the cases of cruelty or adultery. The new law permits non-resident couples in a state that doesn't recognize their union to divorce only after living separate and apart for one year, thereby removing the option of divorce for cruelty or adultery. This distinction may give rise to a Charter challenge, as arguably, marriage equality must also mean equality in divorce.

The larger problem of the new legislation is that while applications under the Divorce Act may be made by either or both spouses, divorces under the new legislation require an application to be made jointly by both partners. If it is made by one person only, the individual has to get consent or, failing that, obtain a court order from their home jurisdiction stating that their spouse is either unreasonably withholding consent, mentally disabled, or disappeared. In cases of withheld consent it may be impossible to obtain such a Court order, particularly if the jurisdiction does not see the union as valid or is hostile to same-sex marriage.

Rather than complicate matters with its new law, the government should simply withdraw its prejudicial and offensive contentions before the court. Truly, if its position were that such couples are indeed validly married, it would not still be scheduled to make arguments to the contrary before the Ontario courts this week.