|Apinda Mpako, Pan Africa ILGA|
|Apinda Mpako, Pan Africa ILGA|
The Canadian government is arguing that thousands of same-sex couples who travelled to Canada to get married, are not legally wed.
The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed.
But speaking in Halifax Thursday, the Prime Minister said the issue was not on the agenda for his majority Conservatives. “We have no intention of further re-opening or opening this issue,” Stephen Harper told reporters when asked about The Globe and Mail’s report.
The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married – a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.
“In terms of the specifics of the story this morning, I will admit to you that I am not aware of the details,” Mr. Harper said. “This I gather is a case before the courts where Canadian lawyers have taken a particular position based on the law and I will be asking officials to provide me more details”
The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.
The two women – professionals in the their early 30s – cannot be identified under a court order. But Martha McCarthy, a prominent Toronto lawyer who represents them, said the government’s about-face is astonishing.
“It is scandalous,” she said in an interview. “It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity.”
Ms. McCarthy, who played an instrumental role in the fight to legalize same-sex marriage, said Ontario has tried to duck the volatile test case by deferring to the federal government.
“It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it,” she said. “All the while, they were handing out licences to perform marriages across the country to non-resident people.”
The latest development threatens to transform Canada from an international beacon for the rights of gays and lesbians to a nation that discriminates against them, Ms. McCarthy said.
Same-sex marriage was effectively legalized by the courts in 2004. A year later, the Liberal government of then-prime-minister Paul Martin passed a bill enshrining it in law. More than 5,000 of the approximately 15,000 same-sex marriages that have taken place since then involved couples from the United States or other countries.
In a response to Ms. McCarthy’s court application, federal lawyer Sean Gaudet tied the federal position to two central propositions. First, he said, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.
“In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,” Mr. Gaudet stated. “As a result, their marriage is not legally valid under Canadian law.”
Under this reasoning, the federal government would recognize the validity of marriages that take place in Canada provided the same-sex partners come from a state or country that also recognizes same-sex marriage.
Evan Wolfson, president of a New-York-based gay rights group, Freedom to Marry, said the federal position will be a major embarrassment for Canada internationally. He said it is too early to predict what effects the move may have on child custody, spousal support or asset division for estranged same-sex couples who were married in Canada.
“One of the benefits that marriage gives to families is security and clarity,” Mr. Wolfson said. “They don’t have to deal with a tangle of uncertainty. If the Canadian government is serious about trying to cast doubt on people’s marriages, it not only insults their dignity and hurts them personally, but it raises all sorts of complex legal and economic questions for everyone who deals with them – employers, businesses, banks, and on and on.”
Beyond the financial implications, Ms. McCarthy said, same-sex couples have looked to marriage to provide a sense of belonging and inclusion in the community. “They returned home with marriage certificates that they got on their wedding day showing everybody they were legally married,” she said. “They gave them to their employers, their benefits people and all kinds of other third parties. And Canada participated in that.”
Their divorce application will be considered next month by an Ontario Superior Court judge. They are asking the judge to either craft an exemption allowing them to divorce or to strike down any legislative provision that has the effect of preventing them from doing so.
“At no time were they advised by either the provincial or federal governments that their marriage was not valid,” the application states. “In addition to the emotional distress caused to the joint applicants, they specifically incurred legal and travel costs associated with a marriage that was promoted by the provincial and federal governments, and which is now being denied.”
The couple’s application says they believed Canada would afford them the respect of ending their marriage legally. “Without this, they cannot move on from this chapter in their lives,” it says. “It is legally and procedurally unfair for a government to grant the right to marry, to perform such marriages, and then leave the Joint Applicants with absolutely no remedy.”
Ms. McCarthy said California, which recently faced a similar problem, passed a law recognizing the validity of same-sex marriages involving non-residents so they could obtain divorces. “That’s exactly what we could do here,” she said. “But it requires legislative action, and that is not something that has happened with great speed in relation to gays and lesbians in the past.”
In an e-mail Tuesday, Mr. Gaudet said he forwarded a request for an interview to his superiors. His department provided no further response.