Brody's Notes... Canada's Justice Minister: We're Not Revisiting Same-Sex Marriage Debate

Canadian Minister Of Justice, Rob Nicholson

By Brody Levesque | OTTAWA, ONTARIO, CANADA -- The Canadian Minister Of Justice, Rob Nicholson , announced Thursday afternoon that the Canadian government will rework the current marriage law which would allow non-resident couples married in Canada to obtain divorces. In a statement released by Minister Nicholson, he said: "I want to be very clear that the Government has no intention of reopening the debate on the definition of marriage."

"This case today involved the fact that, under current law, some marriages performed in Canada could not be dissolved in Canada. I will be looking at options to clarify the law so that such marriages performed in Canada can be undone in Canada."

Speaking to reporters from an event in North Vancouver, B.C. on Thursday afternoon, Canada's Tory Prime Minister Stephen Harper said; "We're not going to reopen that particular issue. This is a complicated case and the minister of justice, I think, has put out a statement clarifying the government's position on that. 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 Prime Minister said.

The controversy erupted as what appeared to be a reversal of the law was revealed in legal filing in a Ontario court brought by a lesbian couple seeking a divorce. Legally wed in 2005 under the statue in Toronto, the couple were informed they cannot seek or obtain a divorce because an opinion by a Department of Justice lawyer stated their marriage is not legal under Canadian law since they could not have lawfully wed in Florida or England, where the two partners reside. The Department had taken a legal position that same-sex marriages involving non-residents are invalid – and cannot be dissolved – unless they are recognized as legitimate in the couple’s home country. That quickly sparked confusion at home and abroad from activists and couples who married in Canada.

The Globe and Mail reports that former prime minister Paul Martin, who brought in the law allowing gay and lesbian couples to legally marry, said the government’s position in the Toronto divorce case is “absolutely ridiculous.”

“We validated those marriages and you cannot retroactively invalidate marriages that you validated,” Mr. Martin said in an interview.

The federal position is based on two central propositions. First, 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 couple’s home country of state.

Legal experts and politicians are seriously at odds over how residency requirements ought to apply to foreigners who were not warned that they might be unable to divorce.

Gay activists warned Thursday that their formidable lobby will mobilize to fight any attempt by the Harper government to push back hard-won rights.

“Have thousands of same-sex couples been misled by Canadian officials for nearly eight years?” said Helen Kennedy, executive director of the gay rights group, Egale Canada.

It also emerged that the Toronto case was the second time in the past year that Justice Department lawyers have intervened to raise obstacles in a same-sex divorce case.

Several months ago, it launched a legal intervention in the case of a Canadian man, Wayne Hincks, and his partner, who had obtained the status of a civil partnership in Britain.

The Crown contended that a civil partnership obtained in Britain is not equal to marriage under Canada’s Divorce Act – notwithstanding the fact that Britain considers a civil partnership tantamount to marriage. ~ The Globe & Mail

Speaking on the condition of remaining anonymous, an official with the Department of Justice told LGBTQNation Thursday evening that the problem really was that there were no divorce provisions built into the law nor were there clarifications that should allow for same-sex marriage in a more definitive sense for non-residents thus creating what amounts to a legal anomaly.