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Irwin Cotler

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Government's "Fix" for Gay Marriage? Just Support It

Posted: 02/ 2/2012 10:31 am

The Canadian government has received favourable press recently about its gay rights work abroad, particularly as expressed by Foreign Minister John Baird's speech before the Royal Commonwealth Society in which he stated, inter alia, "the criminalization of homosexuality is incompatible with the fundamental Commonwealth value of human rights."

While the Government's initiatives in these matters should be acknowledged, there is one very important domestic gay rights issue that remains unresolved -- that which arises from its seeming about-face on gay marriage. Indeed, serious questions remain about the Conservatives' approach to the issue now that they have vowed to "fix" a self-created problem, the fear being that any "fix" is likely to make matters worse.

The recent controversy arose in a same-sex divorce case involving one spouse from Florida and the other from the U.K. While the couple in question may fail to meet the one-year residency requirement for divorce that applies to all couples, the Government did not rest its argument here. Instead, it asserted in Court filings that same-sex couples wed here are not legally married if their union would not be recognized in their home countries. This was the first time the government made such an argument, a position from which it quickly retreated before vowing to "fix" things -- though it is unclear what exactly needs changing.

While many perhaps confusing legal concepts arose in the ensuing media debate -- with varying degrees of accuracy -- the reality is that any residual strands of law limiting only the marriages of same-sex couples were put to rest by the Civil Marriage Act of 2005, which plainly states, "For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex."

Parliament has spoken clearly on this issue, as have the courts in finding that the Charter mandates marriage equality -- we cannot have different rules in place that draw distinctions based on whether a couple is homosexual or heterosexual.

This leads to the first of several unresolved questions: What does the Government need to "fix"? The position of the Government in which I served as Justice Minister -- and that enacted the Civil Marriage Act -- was that these marriages are valid. This seemed to be the view of the Conservative government until it made this court filing.

The only thing that needs to be "fixed" is the Government's submission, which should be withdrawn or amended. Indeed, a court decree should be sought making plain that this couple -- and by extension others similarly situated -- are in fact validly married. Once the filing came to light, the Government eventually came forward to say it viewed the couples as validly married -- though it has yet to assert this in writing before the court and put to rest any argument to the contrary, including its own.

Indeed, since the Government has done no such thing, one might wonder if it stands by the filing. Indeed, how such a filing was made in the first place? The Government has yet to state outright that the lawyer in question "went rogue" or acted without authority. If this were the case, would we not be hearing of consequences for the lawyer? Would the submission not be modified?

The very real fear here is that any legislative "fix" proposed by the Government -- as opposed to simply coming up with an agreement in Court -- might do more harm than good. If the Government seeks certainty that all marriages performed in Canada must be considered valid in other jurisdictions, it may place additional burdens on couples of which one partner is a non-national.

Or, it might prevent foreigners from marrying in Canada altogether, which would, in the words of Queens University law professor Kathleen Lahey, "convert Canada from a no-residency marriage destination into a country that discriminates against noncitizens in its marriage laws." Such a change would have dramatic consequences not only for family law but also for Canadian tourism and the immigration system as well.

Justice Minister Rob Nicholson blamed the situation on the previous Liberal government leaving a "legislative gap", yet there is no lack of applicable legislation. The residency requirement for divorce was codified in the 1985 Divorce Act of the Mulroney Government and applies to all couples, and the wording of the Civil Marriage Act is clear that Parliament does not intend such marriages to be "void or voidable."

Thus the ultimate question: If the Government is planning to 'fix' something, what is it? The only thing that needs to be fixed is its submission before the Court wherein it suddenly and inexplicably decided to impugn the validity of these marriages. Regrettably, it has yet to do so, raising the questions of where and how this 'fix' will occur - and if it will perhaps make matters worse.