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Q&A: Lawyer representing couple at heart of same-sex marriage case answered your questions
Non-Canadian same-sex couples who married in Canada had the legal status of their marriage thrown into question on Thursday. Hours after the story broke, we had the lawyer involved in the test case available to answer your questions about what this means. Here is the transcript.
- 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.
I’m an online editor at the Globe, and I’ll be moderating the discussion.
Joining us is Martha McCarthy, a prominent Toronto lawyer who is representing the couple in the current case.
Please leave your comments and questions. I will try to pose to Ms. McCarthy as many as we can. This is a sensitive issue, so please be respectful. All comments are moderated and only selected ones will show up.
For background, read our main story: www.theglobeandmail.com
And the latest: www.theglobeandmail.com
- 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. - Columnist John Ibbitson also weighed in on the debate this morning: www.theglobeandmail.com
- The latest from Kirk Makin: Former Toronto mayor David Miller decries Ottawa’s ‘sneaky’ reversal on gay marriage: www.theglobeandmail.com
- A look back, in pictures, of same-sex marriage in Canada: www.theglobeandmail.com
- 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.
- This news is both shocking and confusing. My partner and I married in Toronto in 2008. My partner is a Canadian citizen, I am a UK citizen and we live in the UK. At no point during our application was it mentioned that our UK residence would mean that our marriage would not be legal. We chose to marry in Canada because a UK Civil Partnership, although legally binding in the UK, is not recognized in Canada. If we then opted to live in Canada we would have to get divorced from our Civil Partnership and then re-marry in Canada. We were assured however, that marrying in Canada would be legally binding in the UK as a Civil Partnership. Does this now mean that we are not in a legal partnership in either country? How can this be?
- Lots of people are posting comments that they may be in this situation. Here are some others.
- I married my Canadian husband as a U.S. citizen; he sponsored me for purposes of immigration and I became a Canadian citizen recently. What impact does this ruling have on my marriage?
- 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.
- I'm a non-resident Canadian. My reading of what I've seen is that I'm affected too -- I married my Irish wife in NS in 2005. We live in Ireland. What is the status of this? Ireland recognises Canadian same-sex marriages for the purpose of Civil Partnerships... could this be affected too?
- If this were to become policy, what a CRA nightmare. My partner and I were married in Ontario in March 2005, while residents of Minnesota, which does not permit same-sex marriage. In March 2007, we "landed" as permanent residents and in June 2008 we moved to Canada. Later this month we will be submitting our applications for citizenship.
Given that we were married prior to obtaining permanent residency and while residents of US states that do not permit same-sex marriage, is our marriage recognized in Canada? I haven't seen that addressed. I've already corresponded, this morning, with Ms. McCarthy and given that this issue is currently only in relation to her case, who knows. But, what of those who were married in one province when it wasn't legal in the couple's province of residence? This opinion seems to have been made hastily without regard for the broadsweeping implications. - 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.
- Hi Martha, thanks for clarifying that it's not a reversal but rather one argument made by one government lawyer. I think people are blowing this out of proportion - there is no common law or statutory law that would indicate that this lawyer's argument is actually true, right?
- 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.
- Ms. McCarthy, if the couple you are representing are not Canadian citizens nor residents of Canada, why are they before an Ontario court at all? Or perhaps you could clarify?
- 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.
- If this has tax and other financial impact on citizens of other countries. could Canada not face hundreds of court cases for financial loss for couples who would lose tax and other benefits in their own countries? What about parental rights?
- While Martha addresses Jamie's question, I'm going to post some other reaction from readers.
- 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.
- And, the mess extends beyond Canada. New York state, e.g., recognizes Canadian same-sex marriages for purposes of state employee pension programs. If Canada were to say, "It wasn't a real marriage," what then of New York's recognition of these "non-marriages"? Oy.
- The English case of Wilkinson v. Kitzinger holds that marriages that are contracted between same sex parties living in the UK are not valid where the parties move back to the UK. The marriage has been held to essentially transmute into a domestic partnership under UK legislation. So the marriage is already not valid in the UK if the parties were living in the UK prior to the marriage and went back there afterward.
- Just by way of follow up, I'd love to know if Justice would take the position that a muslim woman who married a non-muslim man (a situation forbidden in many muslim countries) would be a marriage that is not recognised in Canada.
- I was married in Canada in 2004 my husband and I live in NY and we now have legal marriage in NY but not at the time we were married in canada, Is our marriage valid or not?
- 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.
- This is confusing. If the home jursidiction of your clients does not recognize their marriage, what is the necessity of the divorce given that they do not reside here?
- 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.
- I don't understand why this is being framed as a "reversal" by the feds. Maybe it's sneaky, and maybe it's something that should have been made clear a long time ago, but is it really a "reversal"?
- 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.
- I understand "divorced" as a legal condition best described simply as no longer married. It seems to me that the government has granted their wish for all intents and purposes.
- 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?
- Martha: Is there anything in common law hat addresses the fact that applicants who came to Canada were never forewarned? The government had to know the residency of the same sex applicants when they issued valid marriage licences
- 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)
- On what Charter
grounds are the couple challenging the residency requirement? - 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.
- Thanks for joining us, Martha. And thanks to all our readers for joining in. We had a very large number of questions and comments, and we ran out of time to address all of them.
There are obviously a lot of legal (and political) questions that still need to be answered, which we will find out in the days to come.
You can continue the discussion on the articles: www.theglobeandmail.com
Obviously the comment pages are quite active on this issue!
