We will start the discussion at 12:30. You can start leaving comments and questions now. All comments are moderated and only selected ones will show up.
We're also looking for foreign couples who could be affected by this decision. If you are a foreign same-sex couple who got married in Canada, please send your contact info to me at channay@globeandmail.com. If you're on Twitter, you can also reply to us @globeandmail to follow up.
It's worth noting that, as far as we heard this morning, Prime Minister Stephen Harper was caught offguard by the government court filings that outlined this decision. In Halifax this morning, Mr. Harper said: “In terms of the specifics of the story this morning, I will admit to you that I am not aware of the details."
He said the Conservatives have no interest in re-opening the same-sex marriage debate.
Hi, Martha. Thanks for joining us today. To start: Can you summarize what these court filings mean to foreign same-sex couples who married in Canada?
The Federal government has responded to our request for a divorce for a couple who are resident outside of Canada, and who cannot be divorced in their home jurisdiction. In the responding court document, called an Answer, the Feds are saying that the court cannot grant a divorce because the couple is not legally married. Why? The Feds say that if the couple's home jurisdiction did not recognize the validity of the marriage, then it was never a valid marriage to begin with.
So, to be clear, at the moment, they only mean that the government intends to make this argument in Court. Nothing has changed in the legal landscape. If they withdrew the argument, or lost in Court, there would be no effect. The shocker is that they are saying it at all.
Lots of people are posting comments that they may be in this situation. Here are some others.
I don't think it means that and I don't think any of us should panic at the moment. It means a government lawyer is making an argument in our case. Goodness knows why they made that call but apparently they do not want to start granting non-resident divorces. It's possible that a Court decision could eventually say that your marriage wasn't valid but that is a long way off from where we are now. I also believe the prospect of that is remote.
There isn't a ruling yet, just a government position. However, your fact situation highlights the contradiction between the government's position on this issue and on immigration matters. Immigration officials in Canada certainly have recognized the validity of these "non-resident" marriages in the past.
What's the timeline in this case? If the filings have been made recently, do you have an estimate for when these arguments could be heard in court?
These are like law school exam questions! I hadn't considered CRA! Yes there are many implications that I am not sure were thoughtfully considered before the Feds decided to take this position.
The Federal Government is scheduled to argue the issue of the validity of the marriage on February 27 and 28, 2012. They haven't served those materials yet but my understanding is that they we will making the argument in the context of a motion to dismiss our claim for a divorce.
Note to readers: Thanks for all your comments. We will try to get to as many as we can (all are being read). Thanks, also, for the respectful tone you've all been upholding. Much appreciated.
I agree 100% that there appears to be a misunderstanding out there that there has been a ruling or a decision. It is just their position right now. It could change (one can only hope), or be ruled upon by the Court in our favour. At the moment, though, I do understand the reaction the story has received since it is shocking that the government would take this position without ever telling anyone, arguing it, or dealing with it in any way, while non-residents have been getting married here for almost 8 years.
They can't get divorced in their home jurisdiction because it doesn't recognize the validity of the marriage. They can't get divorced here, even though they were married here, because the Divorce Act has a one-year residency requirement. So we are challenging the residency requirement in a Charter case in order to get them a divorce. After we served our claim on the Federal and Ont governments, the Feds filed the pleading saying that their marriage was never valid.
While Martha addresses Jamie's question, I'm going to post some other reaction from readers.
It's hard to comment about the effect in other jurisdictions because I don't know the laws of other places. It is possible that in other cases, such as custody cases, foreign courts have recognized a parent's status as a result of, or based partly on the fact that a couple was legally married in Canada. And although I dont know about possible financial loss claims, I think there is a real problem with the fact that our government handed out marriage licences that it now claims were never valid, having people go back to their home jurisdictions, to their families, employers, etc., and advise them they were now married.
They wish to be divorced.
I think what AP is getting at is whether they are even recognized as married at all in their home jurisdiction? (Thereby not necessitating a divorce.)
Right, but they were married, felt married, told people they were married, believed themselves that they were married, and now wish to be divorced. It is both legal and emotional.
It's not technically a reversal, I suppose, but it is certainly a new position, since we have been solemnizing non-resident marriages for almost 8 years without anyone breathing a word of this.
It is pretty upsetting and offensive, to the couple, and to others who believe in the freedom to marry for all couples, to say, we told you that you were married, but now that you want a divorce, you can't have one because (surprise) you were never legally married. And why are you complaining because at least you don't have to worry about getting divorced?
Even though divorced is not usually considered to be an ideal status that people aim for, it is a status that has meaning. And if you are an individual who had a wedding surrounded by family members, that didn't work out, there are many reasons that you need to say, we got divorced.
Unfortunately, we're going to have to wrap up the discussion shortly. I believe we have time for one more question.
They did know their residency, as our licence forms require addresses. I am not sure if there is a common law argument. We are relying on the Charter and making arguments about the representations made by our government officials when they gave same-sex couples marriage certificates (which of course, are usually proof to the world of a valid marriage)
Section 15 (equality) and section 7 (freedom)
Any last comments before we end, Martha?
Write to your MPs and tell them you are appalled!!! Help us make change on this very small issue so that we are not all embarrassed, in a very big way, on the international stage. And thank you for your interest.
Hi, welcome to our discussion on today’s big story: same-sex couples who have flocked to Canada to get married since 2004 are now being told that their marriages were never valid. Globe and Mail reporter Kirk Makin broke the story this morning, based on government court filings in a test case about a foreign same-sex couple who were wed in Toronto and are now filing for divorce.
The Federal government has responded to our request for a divorce for a couple who are resident outside of Canada, and who cannot be divorced in their home jurisdiction. In the responding court document, called an Answer, the Feds are saying that the court cannot grant a divorce because the couple is not legally married. Why? The Feds say that if the couple's home jurisdiction did not recognize the validity of the marriage, then it was never a valid marriage to begin with.
My wife and I got married on June 11th, 2003, the day that the law changed in Ontario. We were among the first 3 couples in Ottawa to get married and were very very proud of being at the forefront of that change. Canada has a moral responsibility to continue to show leadership on this issue; I was concerned but (did not really believe) that a Harper majority would allow for retrenchment on this issue. I feel like my fears are now being realized.
