Bill to close loophole in same-sex marriages creates 'double standard'

OTTAWA — The Globe and Mail

Twice now, the Harper government has chosen not to support same-sex unions. Canadians expect better (Armando Franca/Associated Press)

The Conservatives have introduced a bill that would allow same-sex marriages of foreigners performed in Canada to be dissolved in Canada.

While gay advocacy groups are hailing it as a victory, the legislation proposed Friday would create one set of divorce rules for Canadian couples and another for those foreign same-sex couples married in Canada.

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As far as the government is concerned, the amendments to the Civil Marriage Act tabled by Justice Minister Rob Nicholson would fix the legal loophole that surfaced after a Globe and Mail report on a high-profile court case involving a lesbian couple seeking a divorce in Ontario.

“Recently it came to light that there was an anomaly in our civil marriage laws,” Mr. Nicholson said in a statement. “We are fixing the anomaly in the law.”

The amendments to the Civil Marriage Act state that a couple’s marriage can be dissolved in Canada if they have separated, and been living for at least one year, in a state that does not recognize the validity of their marriage.

But some critics, such as Michael Cochrane, a prominent Toronto-based family lawyer, said the proposed legislation is riddled with “pretzel logic” that creates a “double standard.”

Normally, couples can obtain a divorce in Canada for three reasons: cruelty, adultery and separation for a year. For foreign same-sex couples, the bill says that separation is the only grounds for divorce.

Julie Di Mambro, the minister’s press secretary, said in an e-mail that the distinction was necessary. “Canadian courts would not be best placed to hear evidence of events that happened in another country, which would be needed in cases of allegations of adultery or abuse,” she wrote.

The legislation also requires the divorce application to be made jointly by both partners. If it’s made by one person only, the individual has to get consent or, failing that, obtain a court order from their home jurisdiction that states their spouse is either unreasonably withholding consent, mentally disabled or cannot be found.

“The government is making a presumption that person could get that sort of an order from a court in a country that doesn’t recognize their marriage and is hostile to same-sex couples,” Mr. Cochrane said. “It’s really making these couples jump through a lot of legal hurdles just to get a divorce.”

Mr. Cochrane said that while he didn’t see the government’s actions as “inherently hostile” to foreign same-sex couples, the legislation would effectively stop Canada from becoming a fly-in “tourist divorce destination.”

Same-sex marriage was recognized by the courts in Canada in 2004 and, a year later, the Liberal government of prime minister Paul Martin enshrined it in law.

In the case that prompted the widespread furor, the two women, who can’t be named under a court order, were wed in Toronto in 2005 but were told they weren’t legally married because their marriage wasn’t recognized in their Florida or United Kingdom homes. The Department of Justice also 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.

LGBT advocacy groups and politicians criticized the Department of Justice’s position, which appeared to backtrack from recognizing the validity of same-sex marriages.

“It really wasn’t necessary to step in and talk about the validity of these same-sex marriages. That argument should never have been made,” said Martha McCarthy, the lawyer for the lesbian couple at the centre of the media storm.

Lawyers like Ms. McCarthy and Mr. Cochrane say the legal community was aware for several years that the loophole existed, and both the Liberal and Conservative governments should have fixed it earlier.

Ms. McCarthy now wants to know if the government will expedite the legislation through Parliament, but the minister’s office only said the government would act “swiftly” without going into specifics.

“The worst-case scenario for us now is that there will be significant delay in our case while they go through the motions,” Ms. McCarthy said.

If passed, the amendments will be applied retroactively, allowing Ms. McCarthy’s clients to move ahead with their divorce proceedings. The process for ending these marriages does not, however, address issues such as property, child or spousal support, which remain subject to laws in the local jurisdiction where the couple lives.

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