Same-sex marriages of non-resident couples not legal: federal justice department

Posted on in Equality Debates

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Published On Thu Jan 12 2012.   Richard J. Brennan, National Affairs Writer

The Harper government is being accused of taking away same-sex rights by “stealth” in light of a surprise government stand that non-resident gay and lesbian couples who flocked to Canada to exchange vows really aren’t legally married after all.

“The narrow interpretation of the law shows that the Harper government is trying to take away same-sex rights by stealth, and Canadians need to know that the advances we thought were secure are now under threat from the Harper neo-conservatives,” Interim Liberal Leader Bob Rae told the Star Thursday.

Thousands of same-sex marriages since 2004 involving couples from outside Canada are in limbo as result of a new position taken by the Conservative government. In a nutshell, government lawyers are arguing in court that if same-sex couples could not be legally married in their home country, then their Canadian wedding is not valid.

The revelation came when a lesbian couple — one from Florida and the other from the United Kingdom — married in 2005 filed for divorce in Toronto but was told by a Department of Justice lawyer that their marriage was not legal in Canada.

Meanwhile, Prime Minister Stephen Harper vowed Thursday to find out why the sudden change, but assured reporters that it is not a sign that his government is reopening the same-sex marriage debate.

“I will admit to you that I am unaware of the details,” Harper said following a news conference in Halifax. “This is I gather a case before the courts where Canadian lawyers have taken a particular position based on the law … I will be asking officials to provide me more details on this particular case.”

“As I have said before we have no intention of opening or reopening this issue,” he said.

NDP MP Olivia Chow said that Canada used to be a “beacon of hope” for gay and lesbian couples wanting to get married but now it is a “a laughing stock.”

Chow said if federal lawyers win their argument, then effectively as many 5,000 non-residents who came to Canada to wed are not legally married.

“After making good tourist dollars from these thousands and thousands of gay and lesbian couples, the Harper Conservative government is now saying ‘maybe we don’t believe your marriage is legal,’” she told reporters. “If the federal government through its lawyer is able to win its argument (then thousands) marriages that we performed here in Canada are no longer legal.”

Chow added the requirement of having to live in Canada for a year before applying for a divorce can easily be dropped from the federal Divorce Act, adding that “this is not the first time there has been a problem.”

Megan Gaucher, a Queen’s University political studies PhD student, said the shift in federal policy is one of several recent changes “that highlight the Harper government’s paradoxical stance on gay rights in Canada.”

“While the Harper government continues to use Canada’s progressive stance on gay rights to promote its human rights agenda abroad, it is simultaneously making it more difficult for non-Canadian gays and lesbians to enjoy these rights. Invalidating these marriages not only contradicts Canada’s international reputation, but also further reinforces the Harper government’s negative position on gay and lesbian rights, particularly in relation to the institution of marriage and family composition,” she said in a statement.

Robert Leckey, an associate law professor at Montreal’s McGill University, said Canadians have every right to be suspicious as to what the Harper government is up to.

“The federal government has never advanced those arguments before, and it is surprising that the federal government is involved in a private divorce case,” he said.

Helen Kennedy, executive director of Egale Canada, a human rights organization, said in a release that the federal government’s actions are a direct insult to gays and lesbians both in Canada and abroad.

“It is indefensible for the government of Canada to play politics with people’s human dignity,” Kennedy stated.

Kennedy noted, as others did, that this most recent case comes as the federal government is also intervening in an Ontario case to argue that two Canadian citizens who entered into a same-sex civil partnership in the UK — an equivalent to marriage in all but name — are not legally married in Canada and therefore cannot be granted a divorce.

“Not only does this throw into question hundreds of legal rights such as property, spousal support and child custody, it is a betrayal of basic human rights,” she said.

Kelly D. Jordan, a Toronto lawyer who specializes in same-sex family law, said she had been “bombarded” all day by clients with questions about whether they are legally married or not.

“A significant number of the marriages that have occurred in the last eight years have been from same-sex couples who have come here specifically to marry, because Canada is recognized internationally as a leader on lesbian and gay rights,” she added.

“To actually say that they don’t need a divorce because they were never legally married here is really quite controversial. We’d like to think it’s a mistake, or they didn’t think through this legal argument, because it would be a significant policy change.”

With files from Kate Allen

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This entry was posted on Thursday, January 12th, 2012 at 5:33 pm and is filed under Equality Debates. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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