Catch 167: Harper government pulls rug out from under non-Canadian gay couples who married here in good faith
January 12, 2012 2:52 AM   Subscribe

Ottawa does about face on same-sex marriage for non-Canadians. The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed. The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce.... The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo. [The lesbian couple's] divorce application will be considered next month by an Ontario Superior Court judge. They are asking the judge to either craft an exemption allowing them to divorce or to strike down any legislative provision that has the effect of preventing them from doing so.

In a response to Ms. McCarthy’s court application, federal lawyer Sean Gaudet tied the federal position to two central propositions. First, he 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. Second, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple. “In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,” Mr. Gaudet stated. “As a result, their marriage is not legally valid under Canadian law.”

Under this reasoning, the federal government would recognize the validity of marriages that take place in Canada provided the same-sex partners come from a state or country that also recognizes same-sex marriage.


The Globe & Mail will be hosting a discussion on this topic at noon Eastern time today.
posted by maudlin (116 comments total)

 
Fuck you, Stephen Harper.
posted by stavrosthewonderchicken at 3:07 AM on January 12, 2012 [58 favorites]


Can married people sue the Canadian government for damages caused by not recognizing the legality of the relationship? For example, denial of visitation rights leads to one partner not being able to care for the other in the hospital, that sort of thing.
posted by Blazecock Pileon at 3:07 AM on January 12, 2012


Well, the remarkable thing about this is up until now everyone thought these were valid marriages and were being treated as such (as far as I can tell); it's in this divorce proceeding it has been revealed that it is apparently the opinion of the federal government now that they are not valid.

If this leads to the denial of various rights and entitlements down the road (as it appears it will) that will be grounds for a further legal challenge. At this point, though, we just have to stare in disbelief for a bit.
posted by mek at 3:09 AM on January 12, 2012


That sinking feeling of despair and disgust, yet again.
posted by PercussivePaul at 3:20 AM on January 12, 2012 [1 favorite]


To say nothing of the actual wrongness and homophobia of this policy itself, which is uncanadian, it's the unfairness and meanness of this which is uncanadian. The abuse of good faith. 

And it's sickening how effective this kind of divisive politics is, riling up group against group, with no care to Canadian institutions or outcomes that most Canadians would find ethical, because -- at best these are externalities uncaptured by our political process, and at worst because the present ethical and institutional core of the country is precisely what's being targeted. And it's sickening to think that can be so simply, and cynically, disassembled.
posted by ~ at 3:25 AM on January 12, 2012 [10 favorites]


Christ, what an asshole.
posted by Zonker at 3:26 AM on January 12, 2012 [6 favorites]


It's so maddening. Rather than the delightful Grover Norquist calculus that no tax cut is bad because it defunds government, it's as if this government believes no reactionary red meat for senior citizens is bad because it debases faith in good government itself.
posted by ~ at 3:42 AM on January 12, 2012 [4 favorites]


Full text of C-28, the bill that legalized same sex marriage in Canada. There's nothing in there about "only if they are also legal in the home country or state of the couple."

However, Sean Gaudet, a Department of Justice lawyer, apparently wishes that C-28 said "only if they are also legal in the home country." Perhaps he wishes C-28 was never passed. It might be that he is only cravenly going along with orders from on high -- it doesn't matter. He's making an outlandish argument that shows contempt for justice and fairness. Shame on him.

(yes, I do blame Harper, but it's weaselly little functionaries like Gaudet who make it possible for Harper to keep his hands clean while pushing a homophobic agenda behind the scenes)
posted by justsomebodythatyouusedtoknow at 4:02 AM on January 12, 2012 [4 favorites]


How utterly contemptuous.

To say nothing of the actual wrongness and homophobia of this policy itself, which is uncanadian, it's the unfairness and meanness of this which is uncanadian. The abuse of good faith.

I could be wrong of course, but I'd like to think the sheer - as you say - meanness of this will strike a chord with mainstream Canadians and we'll see some kind of speedy reversal of the decision. It's a little too naked in its ugliness, even for Harper.
posted by stinkycheese at 4:06 AM on January 12, 2012


If the Canadian system is anything like the system in the US, then executive branch cronies do not have the function of either creating law (that's for the legislative branch, except for in circumstances where the function is expressly given to administrative bodies) or interpreting law (that's for the judicial branch). I'm not sure how this has any legal effect other than making people look like bona fide assholes.
posted by jabberjaw at 4:19 AM on January 12, 2012


Given that age correlates with opposition to gay marriage, it's not too off-topic that at least one poll suggests what seniors want: more public money.
posted by anthill at 4:23 AM on January 12, 2012


This is baffling. I don't understand the logic of pulling this, except as political PR.
posted by mariokrat at 4:26 AM on January 12, 2012


How ugly. I had always thought that Canada was better than this.
posted by lucien_reeve at 4:32 AM on January 12, 2012


I thought we weren't supposed to call it the Harper Gov't because that's what he WANTS to call it.
posted by The Thnikkaman at 4:44 AM on January 12, 2012


Sigh. Time to send yet another carefully worded, reasonable letter to the PM in protest. If only I could convince myself they made a difference.
posted by The Hyacinth Girl at 4:50 AM on January 12, 2012 [2 favorites]


If the Canadian system is anything like the system in the US

It's a parliamentary system so the Executive and the Legislative chambers are the same.
posted by unSane at 4:58 AM on January 12, 2012 [1 favorite]


The comments on the G&M article are interesting. They are 100% critical of this, and the G&M is by no means a monotonally liberal rag.

I live in a very conservative rural riding in Ontario (farming, army base, Tory MP as far back as anyone can remember) and yet I have never heard a single word of complain uttered about gay marriage. Quite the contrary in fact: even the religious people I know are quietly proud that Canada has taken a lead in this (just as they are dismayed that Canada no longer leads on environmental and social issues).

The truth is gay marriage is NOT a divisive issue for most Canadians. They are solidly behind it. The Chretien legislation passed without a whimper. There were no protests.

I think Harper has massively misjudged the public mood on this, and I hope he pays the consequences. Fortunately Canadian courts seem to take pleasure in bloodying the nose of the government of the day, and typically take positions leftward rather than rightward. So I would expect to see this argument fail -- not least because it undermines the whole notion of sovereignty.

I mean, really, the legality of something you do in Ontario depends on the laws of Florida? Come on.
posted by unSane at 5:08 AM on January 12, 2012 [8 favorites]


I wonder, if the home country banned say, the marriage of someone raised muslim and born again and a christian (not same sex here, but equally illegal at home), would they also invalidate that marriage? Somehow, I think not.
posted by Bovine Love at 5:15 AM on January 12, 2012 [1 favorite]


I may have to reconsider voting for Canada as president of the US.
posted by Foosnark at 5:17 AM on January 12, 2012 [5 favorites]


> To say nothing of the actual wrongness and homophobia of this policy itself, which is uncanadian...

"Give Harper a majority and you won't recognize Canada"
posted by The Card Cheat at 5:22 AM on January 12, 2012 [2 favorites]


I don't understand the logic of pulling this, except as political PR.

That's plenty of reason, turns out.
posted by mhoye at 5:25 AM on January 12, 2012


In the government's defence:

This is actually an interesting legal question. What it comes down to is whether, when talking about marriage, a (potential) spouse's gender is an issue of capacity, similar to things like consanguinity / age / basic mental capacity, or whether it's an issue of formal validity, similar to things like signing the correct forms, parental consent1 and such.

If you say that it's an issue of capacity, then by almost 200 years of legal development (all over the world), then it should be governed by the domicile of the parties (in this context Florida/England I think?) and they shouldn't be married.

If you say that it's formal validity, then it should be governed by what's called the lex loci celebrationis (location of marriage), Ontario and they were married.

Offhand, I think that either the feds or Ontario, not sure which off-hand, should have set out a law saying "the gender of the parties is an issue of formal validity", which would solve it here. But that means that a Canadian (same-sex) couple couldn't get married in, say, Florida or England. The government's position is, I think, that they could.

1: That one's complicated. France and most civil countries say that it goes to capacity. Private International Law is weird.
posted by Lemurrhea at 5:36 AM on January 12, 2012 [9 favorites]


It really is a baffling argument. How is a Canadian court suppose to decide if a gay marriage is legal? Suppose a Floridian and a Brit get married in Toronto and the marriage is challenged in Ontario. Not only must the court decide which jurisdicition's laws apply to the two parties, it must also decide how those laws would have been applied by the respective country's courts. IE it must decide not how to apply Florida's laws, but how Florida's courts would have applied Florida's laws.

It's nuts and the courts will take it badly.
posted by unSane at 5:39 AM on January 12, 2012


The other big (legal) question is why the province deferred to the feds. Provinces have the power to regulate the "solemnization of marriage", I'm surprised that they are just letting it fly.
posted by Lemurrhea at 5:41 AM on January 12, 2012 [1 favorite]


I suspect this is a poorly-thought-out consequence of a really shitty new federal immigration policy.
posted by mek at 5:41 AM on January 12, 2012


Doesn't 'domicile' in these circumstances have an extremely restrictive meaning? In the sense that it's extremely difficult to change your domicile. For example, as a Brit living in Canada for the last 12 years as a permanent resident, I am still regarded as domiciled in the UK.
posted by unSane at 5:42 AM on January 12, 2012


Wait, I'm really confused. Didn't the pair have to fill out some paperwork at the time they got married? Doesn't the fact that the Canadian government (or the local version thereof) signed off on that paperwork--gave them a license or what-have-you--signal their agreement that the marriage was legal?

I mean, it just seems like the time to raise these (stinky, ridiculous) objections was before they got married, not now.
posted by overglow at 5:44 AM on January 12, 2012 [2 favorites]


Lemurrhea, wouldn't it be up to the domicile country or state whether or not to recognize a Canadian same-sex marriage, rather than for Canada to deny or retroactively negate it just in case they don't?
posted by Flashman at 5:46 AM on January 12, 2012 [2 favorites]


What the everloving shit. I can't even believe this.

I can't read the article right now but unless the first link says something completely opposite the FPP text I'll be back in an hour or so to head-explode.
posted by six-or-six-thirty at 5:50 AM on January 12, 2012


Jesus Christ. This is the second time my marriage has been forcibly annulled (if that's what Harper's just done). I've gotten married to the same woman four times - so yes, we really want to be married to each other. The 2008 California one still counts, though, at least until the courts decide it doesn't.

Having special rights is SO FUN. I recommend it to everyone.
posted by rtha at 5:54 AM on January 12, 2012 [42 favorites]


Frankly, I'm not terribly worried about the long-term prospects of this move succeeding. As soon as sexual orientation was recognized as an analogous ground of discrimination prohibited by the Charter, it was game over for hetero-only marriage. Now, as then, it's *just* the cost of time and money and human misery before we get everyone to recognize that.

As such, I'm seeing this as just another shallow capitulation to the conservative base, giving them stuff they weren't particularly concerned about, like the census mess, or the return to giving monarchy real prominence.

What I am worried about is that with larger issues like the long-gun registry or the Wheat Board 'gone', there needs to be a new big item for the Conservatives to seize upon, and I'm guessing that it would be abortion. The base has wanted a new law for a long, long time, that part of the base is exceptionally motivated, and it makes for the highly-divisive politics this gang craves. And abortion is up for play -- when the last law was struck down, the Supremes only said that that particular law was invalid, not that any abortion law would be invalid. But -- pure speculation.

But hey, we wanted a majority, right?
posted by Capt. Renault at 5:57 AM on January 12, 2012


It really is a baffling argument. How is a Canadian court suppose to decide if a gay marriage is legal? ...
Not only must the court decide which jurisdicition's laws apply to the two parties, it must also decide how those laws would have been applied by the respective country's courts...


That's not a new problem. That's the whole point of Conflict of Laws - which as an example of its importance, is a required course for my law school, at least.

'domicile' in these circumstances have an extremely restrictive meaning? In the sense that it's extremely difficult to change your domicile.

At least as I recall, the domicile of choice requires a permanent residence and an intention to reside. So if you plan to stay in Canada, then you are probably domiciled here. Not positive, though.


Lemurrhea, wouldn't it be up to the domicile country or state whether or not to recognize a Canadian same-sex marriage, rather than for Canada to deny or retroactively negate it just in case they don't?


It would, definitely. But the bigger point is that all the countries generally agree on these things, because they have to for efficiency reasons (not completely, but close enough). They all agree that something that IS a capacity issue is to be generally governed by the place of domicile. They just don't necessarily agree what is a capacity issue for historical purposes. Even then, they're pretty close.

Canada has an interest in not granting invalid marriages. It's a waste of resources, and it does things like this, confusing people into thinking they're married when they're not.

Note: in general, I'm not really sure what's going on with the thing - I want to read it more carefully, I've skimmed the Globe article but nothing else, discussed it a bit with a friend of mine who knows same-sex issues better than me.
posted by Lemurrhea at 5:59 AM on January 12, 2012 [2 favorites]


I think Harper has massively misjudged the public mood on this, and I hope he pays the consequences.

Here's hoping. I thought the same about the census. (Although in retrospect I may have overestimated the national interest in the fiery passions of social scientists.)
posted by ~ at 6:05 AM on January 12, 2012 [1 favorite]


Okay, so we got Canadian gay married in 2005 (had our anniversary just 10 days ago), and we were not eligible to be legally married in California at the time. But then we got married *again* in California in 2008, and that one is still in effect. Any Canadian lawyers want to weigh in on whether our Canadian marriage is valid? Like, if we wanted to get divorced, and have the divorce recognized in Canada but couldn't live there for a year, would the fact that our marriage is currently valid in our home state make it recognized in Canada, although it wasn't in 2005?
posted by rtha at 6:06 AM on January 12, 2012 [2 favorites]


> I think Harper has massively misjudged the public mood on this, and I hope he pays the consequences.

Between Harper's "majority" and Rob Ford's election in Toronto, I'm learning all sorts of things about the Canadian electorate I was happier not knowing.
posted by The Card Cheat at 6:07 AM on January 12, 2012 [1 favorite]


For our foreign friends, I just want to note that 62.35% of us voted for another party, instead of for this asshole.

first past the post, fuck yeah!
posted by Homeboy Trouble at 6:10 AM on January 12, 2012 [4 favorites]


Okay, here's what I don't get. A same-sex couple who's been married in another country is specifically not considered married in the U.S. Doesn't matter how valid a state or another country might say it is, in the U.S. the marriage certificate is meaningless. So how can this ruling affect the legal rights of a same-sex couple in a jurisdiction where they have no legal rights to begin with?

I'm sure there are nuances not covered by the article in question, but as the example specifically refers to people "coming home" from Canada with their marriage certificates, I'm wondering how the question of legal rights even applies.
posted by mie at 6:16 AM on January 12, 2012


Fuck this government. Fuck them right in the eye.

It is pure disingenuous neo-con bullshit saying that the marriages are not valid in Canada because some other nation doesn't recognize it.

Is another nation does not recognize Canadian law, fine. But pretending that this means the Canadian contract is not valid in Canada is /very/ dangerous indeed. What about other civil decisions? If a couple is married in the US and divorce/separate and remarry in Canada, is this now suspect? What about land deeds?

Good luck, because this is going to the Ontario Supreme Court, and, if necessary, The Supreme Court of Canada. Because there is no way they can find in favour of the government on this, and not throw the entire basis of civil law into chaos.

Then again, we got the government we deserved by casting votes for these idiots.
posted by clvrmnky at 6:38 AM on January 12, 2012 [2 favorites]


No, we got the government they wanted because when there's an election choosing among blue and two shades of red, blue wins. And this trend will continue until there is electoral reform, which will never happen as long as blue is in office.

I do wish people would stop saying "Ottawa" and "Canadian" when they really mean "the Harper government".
posted by seanmpuckett at 6:44 AM on January 12, 2012 [1 favorite]


What clvrmnky said. Since when do Canadians let Florida decide which of our rights are valid or not valid? Fuck Harper, fuck Alberta, fuck the BC interior, and fuck that whole stretch of Ontario from Chatham to North Bay.
posted by TheWhiteSkull at 6:50 AM on January 12, 2012 [2 favorites]


God how I hate Stephen Harper, he is a craven, evil asshole pod person wearing an ill-fitting human mask. He is the Canadian Mitt Romney.
posted by biscotti at 6:50 AM on January 12, 2012 [5 favorites]


Any Canadian lawyers want to weigh in on whether our Canadian marriage is valid?

Law student here. NOT weighing in! But this is just a brief by the feds, right? So right now it's akin to the complaints about the Obama government defending DOMA in the court system. It's super-shitty and bad policy, but unless & until the Court accepts the arguments, it's changes nothing, legally.

So keep an eye on the case - put out a google news alert for it or something, put it in the calendar. But fundamentally I would not worry.

My hunch is that the Court will slap it down, or more likely there'll end up being a Charter (aka Constitutional) challenge to that, and a court of appeal or the supreme court will say "no, the trend is towards same-sex marriage rights world-wide, we specifically passed this law, and there was nothing about limiting it."
posted by Lemurrhea at 7:00 AM on January 12, 2012 [3 favorites]


Of course the marriage was valid, but I see no reason why Ontario has any business granting a divorce to people who aren't Canadian and who appear never to have lived in Canada.
posted by one more dead town's last parade at 7:00 AM on January 12, 2012


Okay, here's what I don't get. A same-sex couple who's been married in another country is specifically not considered married in the U.S. Doesn't matter how valid a state or another country might say it is, in the U.S. the marriage certificate is meaningless. So how can this ruling affect the legal rights of a same-sex couple in a jurisdiction where they have no legal rights to begin with?

Yeah, I wondered what this meant too when same-sex couples started coming over the border to get married and returned to their homes. It's not as though a gay couple from Place That Doesn't Recognize Same-Sex Marriage are suddenly eligible for state-mandated spousal rights and benefits once they returned to PTDRS-SM, are they?
posted by Alvy Ampersand at 7:02 AM on January 12, 2012


This is quite bizarre. Being a quiet, stealthy tactician, Harper should have spent years fostering ignorance, bigotry and self-interest in the Canadian public via Sun TV and printed media before sliding issues like gay marriage and abortion into the spotlight. I expect the backlash to be formidable. It's like his fervor to regress the country to 19th century ethics has gotten the better of him.

On the other hand, maybe this is testing the waters of public opinion to confirm where his true allies and enemies are on these issues, so he can take time to subtly bolster and undermine where needed.
posted by CynicalKnight at 7:14 AM on January 12, 2012


Oh fuck Stephen Harper. Again.
posted by gingerbeer at 7:24 AM on January 12, 2012


Being a quiet, stealthy tactician, Harper should have spent years fostering ignorance, bigotry and self-interest in the Canadian public via Sun TV and printed media before sliding issues like gay marriage and abortion into the spotlight.

Fortunately, no-one watches Sun TV; Quebecor keeps getting called out as the racist, homophobic dickbags that they are; and Maclean's ain't exactly gaining circulation.
posted by TheWhiteSkull at 7:36 AM on January 12, 2012


I will perform, for free, a DC wedding for anyone affected by this. It sure was a lot of fun last time around.
posted by MrMoonPie at 7:37 AM on January 12, 2012 [7 favorites]


Canada has an interest in not granting invalid marriages. It's a waste of resources, and it does things like this, confusing people into thinking they're married when they're not.

This is a disingenuous argument. What resources are "wasted" by granting these marriages? Only in a shockingly tiny percentage of cases will a foreign marriage performed in Canada's recognition by Canada be relevant within a Canadian context: what will be more important to those married people is whether their jurisdiction recognizes the Canadian marriage. And that, sadly, is their problem and not ours. But Canada can very well choose to state that anyone who comes here to get married is, for Canadian purposes, married, and the cost to the system will be negligible. It took a test case to even raise the issue, for fuck's sake.
posted by mightygodking at 7:44 AM on January 12, 2012 [1 favorite]


Quebecor

Ugh. Their ongoing propaganda war against the CBC would be enough to make me hate them, even without their trashy tabloid journalism.
posted by Stagger Lee at 7:48 AM on January 12, 2012


As the link from The Card Cheat asserts, there's no way that you couldn't have seen this coming once Harper and the Tories got a majority. Harper and his party and its predecessors have been harping against gay marriage and "aberrant sexual behavior" for years, and Harper keeps political company with anti-gay Christian fundamentalist fanatics. It's infuriating, but it's also unsurprising.

And me and my husband are in exactly the same position -- same year and same Canadian and (legal) Californian marriages and everything -- as rtha .....

A same-sex couple who's been married in another country is specifically not considered married in the U.S. Doesn't matter how valid a state or another country might say it is, in the U.S. the marriage certificate is meaningless.

Legalities aside, it's not meaningless to me and my husband.

And Lemurrhea: any interest in banning or rescinding same-sex marriages is not based on it being a "waste of resources." It's based on cruelty, ignorance, and the desire to treat gays and lesbians as outcasts.
posted by blucevalo at 7:50 AM on January 12, 2012 [2 favorites]


I'm pretty sure that regardless of what the Harper Government says, he cannot deny marriage to same sex couples because he does not control the judiciary and all religious officials who are the ones who have the power to issue these marriage certificates without actual legislation. Unfortunately, with his majority, that's an easy problem to solve.
posted by Pseudology at 7:57 AM on January 12, 2012


Asked about it this morning, Harper says he is "unaware" of the details of the case, promised to investigate further, and stated that his govt has "no intention of opening or reopening" the same-sex marriage debate.

So either he's going all-in on some duplicitous plot in which a senior member of his government has given direct instructions on this matter to the Dept. of Justice (which would seem risky given his razor-thin margin of support in the country), or it may be a case of the left hand not knowing what the right hand is doing. Though one would expect that the Harper govt would have had no problem with the DoJ position, provided it remained out of the public light.
posted by modernnomad at 7:58 AM on January 12, 2012


..or he's lying.
posted by Hoopo at 8:07 AM on January 12, 2012 [3 favorites]


I do wish people would stop saying "Ottawa" and "Canadian" when they really mean "the Harper government".

I get what you're saying but, really, by that logic we should do the same thing for every government ever. That would be like pretending that Canada is a different place every few years because, oh, a different party and/or Prime Minister is in power!
posted by asnider at 8:12 AM on January 12, 2012 [2 favorites]


I do wish people would stop saying "Ottawa" and "Canadian" when they really mean "the Harper government".

I figure this is just cosmic justice for all the times Canadians ragged on Americans for bombing the crap out of all the brown people our military leaders could find, while many of us sputtered "It's not America, it's the Bush Administration!" and the rest of the world said "sure, right, whatever, what country is he in charge of again?"
posted by Tomorrowful at 8:14 AM on January 12, 2012 [1 favorite]


This really sounds like a government lawyer threw the kitchen sink into a defense, just trying out a variety of possible defenses, hoping one would stick or that it would give negotiating leverage.
posted by Bovine Love at 8:15 AM on January 12, 2012


...or he's lying.

yeah, that's what I meant by going 'all-in'... but it seems like an awfully risky strategy to baldly lie in public for basically zero gain (the possible annulment of a couple of thousand marriages of individuals who don't even live in Canada). Harper is many things, but stupid is not one of them. He no doubt would be very happy to see the end of same-sex marriage in Canada, but I can't see him risking his majority over such a small tweak.
posted by modernnomad at 8:15 AM on January 12, 2012 [1 favorite]




I do wish people would stop saying "Ottawa" and "Canadian" when they really mean "the Harper government".


It was Harper and his cronies that spearheaded the push for that kind of branding. I'd be very careful about joining in their rhetoric.

Like it or not, this is our government, and it was elected by the public.
posted by Stagger Lee at 8:16 AM on January 12, 2012 [3 favorites]


At least as I recall, the domicile of choice requires a permanent residence and an intention to reside. So if you plan to stay in Canada, then you are probably domiciled here. Not positive, though.

Yes, but that is all interpreted very narrowly. For example, to change your domicile without taking Canadian citizenship is very hard because you have not demonstrated your intention to reside permanently. You have to (literally) do something like buying a graveyard plot in your adopted country. Just living here, working here, getting married here, bringing up kids here, buying property here is not enough.

The reason why they interpret it so narrowly is mostly to do with tax law, I think, because you have certain tax obligations in your country of domicile, whether or not you live there (ie income you earn in your country of domicile may be taxable in your country of domicile).
posted by unSane at 8:18 AM on January 12, 2012


My point being of course that if the legality of your marriage is dependent on your country of domicile, according to this view of the law it is quite possible for two Canadian same-sex residents to marry but for their marriage to be invalid because of where they moved from.
posted by unSane at 8:19 AM on January 12, 2012


modernnomad: Harper is many things, but stupid is not one of them. He no doubt would be very happy to see the end of same-sex marriage in Canada, but I can't see him risking his majority over such a small tweak.

Although I don't think this particular one is driven by Harper (its not like prosecutors consult him on every case, or any for that matter), he has choosen some small hills to die on. I have great respect for his political abilities (respect your enemies!), but that seems to be one of his biggest weaknesses, possibly accounting for a couple of his minority governments.
posted by Bovine Love at 8:24 AM on January 12, 2012


To say nothing of the actual wrongness and homophobia of this policy itself, which is uncanadian,

Huh. I think that's the first non-ironic use of the word "uncanadian" I've ever seen.
posted by yoink at 8:24 AM on January 12, 2012


I think that's the first non-ironic use of the word "uncanadian" I've ever seen.

I think there are worse ways to use it than as a synonym for "unfair."
posted by mightygodking at 8:26 AM on January 12, 2012


to change your domicile without taking Canadian citizenship is very hard because you have not demonstrated your intention to reside permanently

That's not true. It sounds like HMRC is erroneously asserting that you are still domiciled in the United Kingdom. Your domicile is where you live primarily, and they just want to keep taxing you even though they don't really have the right to do so.
posted by one more dead town's last parade at 8:29 AM on January 12, 2012


I think there are worse ways to use it than as a synonym for "unfair."

True enough. I was just interested because you quite often see the assertion that "uncanadian" is an unthinkable expression (by way of an explicit contrast with big ol' self-satisfied America and "unAmerican"). On the other hand, you often hear of how wonderfully liberal Canada is compared to big ol' nasty conservative America. And then you have a creep like Harper pulling Canada out of the Kyoto protocol and shitting all over gay marriage so...
posted by yoink at 8:56 AM on January 12, 2012


Can all us Canadians please boycott any company that advertises in a Quebecor owned media outlet?
posted by bonobothegreat at 8:56 AM on January 12, 2012


Huh. I think that's the first non-ironic use of the word "uncanadian" I've ever seen.

To be honest, I really thought a certain ironic detachment was implied just by being Canadian talking about Canada.
posted by ~ at 9:03 AM on January 12, 2012 [1 favorite]


Harper may or may not have been informed personally, but I can guarantee than someone in his office received a briefing note about it. If Harper didn't know, his staff certainly did.
posted by bonehead at 9:05 AM on January 12, 2012


(Change that to sh/would have received. I have no direct knowledge of this, just of the standard protocols).
posted by bonehead at 9:07 AM on January 12, 2012


C'mon bonehead, what is your basis for that? Do you know how many cases are ongoing at a given time? Do you think that the PMO is consulted on all of them?

It seems perfectly plausible that the lawyer was angling the primary defense (residency requirement, not particularly controversial) and just threw that in as a back-up. We may not know, but that seems quite sane.
posted by Bovine Love at 9:26 AM on January 12, 2012


He no doubt would be very happy to see the end of same-sex marriage in Canada, but I can't see him risking his majority over such a small tweak.

It's a pretty divisive issue, and remember he won his majority with less than 40% of the votes. I wouldn't be surprised if this doesn't put his majority at risk, but I haven't really looked at the numbers recently.

C'mon bonehead, what is your basis for that?

This issue is one of those pet causes for the Conservatives to make hay over, so it's not unreasonable to think that it's being closely watched over.
posted by Hoopo at 9:40 AM on January 12, 2012


I don't even... Why would the government bother with this? They're like a black box that randomly emits crazy beams at the most unexpected times. Gun registries, the Wheat Board, accurate census forms, now gay people from other countries who come here to get married. Just let it go, Mr. Gaudet. Let it go.
posted by Kevin Street at 9:56 AM on January 12, 2012


The full text of the Justice Department's response can be found here:

http://www.documentcloud.org/documents/283173-l-and-m-answer.html
posted by Adam_S at 10:09 AM on January 12, 2012


It occurs to me that Dan Savage was married in Vancouver. I look forward to what he has to say to the revelation that he is no longer married.
posted by ricochet biscuit at 10:10 AM on January 12, 2012


First of all, I feel the purpose of this approach is stir the pot to cause division and heartache. Bad governance.

More importantly (IANAL) almost universally when something is legal at the time it is created, it's grandfathered and immune. If you built a skyscraper before the law outlawed that kind of skyscraper, or before zoning laws forbade it in that area ... you don't have to tear down the skyscraper.

Once systems get so dicey that you can't count on the legal stability of establishments, it starts to undo trust in all kinds of contracts. Sheer madness.
posted by Twang at 10:22 AM on January 12, 2012 [1 favorite]


Do you think that the PMO is consulted on all of them?

Cases like this, with political consequences? Yes.
posted by bonehead at 10:54 AM on January 12, 2012 [1 favorite]


It's a pretty divisive issue.

No it's not. (Yes, I know that's not the best source, but it's what I could find without digging too deeply.)

Gay marriage was -- or at least appeared -- divisive when it was first being instituted but, with the possible exception of some minority religious groups, there hasn't been much division over the issue since it was legalized across the country. In fact, I rarely hear/read any discussion of the issue at all except for the odd: "Now that he has a majority, Harper is going to eliminate gay marriage and make abortions illegal."
posted by asnider at 11:04 AM on January 12, 2012


More importantly (IANAL) almost universally when something is legal at the time it is created, it's grandfathered and immune.

No. Lots of previously legal things get outlawed and must be destroyed or deactivated or what have you. There's no general legal principle of "grandfathering"--though lawmakers will often choose to permit such grandfathering because of the social or economic costs of the alternative.
posted by yoink at 11:05 AM on January 12, 2012


> It occurs to me that Dan Savage was married in Vancouver. I look forward to what he has to say to the revelation that he is no longer married.

"After issuing thousands of marriage licenses to same-sex couples from United States and other nations where same-sex marriage is not yet legal—marriage licenses that did not come with a disclaimer or an asterisk—Canada's conservative government has now decided that those marriages—marriages like mine—are not legally valid."
posted by gingerbeer at 11:08 AM on January 12, 2012


Cases like this, with political consequences? Yes.

You are assuming that this case is about gay marriage, but it may well not be. In fact, I think it is highly unlikely to be. They are not randomly trying to annul a marriage. The case is being misrepresented here.

First off, the case got brought forward by the couple, not by the government. They were denied a divorce. The defense of the denial of divorce is on two premises: the lack of residency, and the not-legal-at-home thing. There is not ruling here, and to interpret as a "government position" assumes a helluva lot not in evidence. Again, it is just as likely that a lawyer went fishing for some possible defenses and chose that one as a bonus (but poorly chosen) defence. Assuming it was engineered by the PMO, or that everyone was aware that it would blow up in their faces, requires assuming it to be a conspiracy and not incompetence. If you look at it without assuming conspiracy, incompetence seems far more likely.

Just because Harper eats babies doesn't mean he engineers all baby meals throughout the country.
posted by Bovine Love at 11:14 AM on January 12, 2012 [5 favorites]


Conspiracy or incompetence?
posted by modernnomad at 11:26 AM on January 12, 2012


A case involving international and hot-button issues would certainly require at least sending a briefing and prepared media statements to PMO. The PMO may not have done much about it, and may not have chosen to put the issue into Harper's briefing book, but his office would have been contacted.
posted by bonehead at 11:43 AM on January 12, 2012


After chatting with a Canadian law professor who specializes in family law in the context of LGBTQQ individuals, here's what she knows so far: Tthe couple brought a constitutional challenge to the validity of the federal Divorce Act after being denied a divorce certificate because they were not resident in Canada (this initial denial of a divorce was unrelated to the fact that they were a lesbian couple, but they could not get a divorce in Florida or England because their marriage was not recognized there). In response to receipt of this constitutional challenge, the Dept. of Justice naturally has to defend the federal legislation in question (the Divorce Act). The crown attorney did so on three grounds - 1) that the couple had no standing to challenge the constitutionality of a piece of Canadian legislation as they were non-citizens and non-residents of Canada. 2) In the alternative, if they did have standing, then the legislation was constitutionally valid as it is within the federal governments power under the Constitution. 3) in the further alternative, if they did have standing they could not receive a divorce because they weren't married anyway because their domicile did not recognize their marriage.
posted by modernnomad at 11:47 AM on January 12, 2012 [4 favorites]


Money quote from Adam_S's link:

"(a) The Superior Court has no to grant a divorce to the Jolnt because they are not legally married under Canadian law.

4. In order for a marriage to be legally valid under Canadian law, the parties to the
both the requirements of the law of the place where the marriage is celebrated (the _lex loci celebrationis_) with regard to the formal requirements, and the requirements of the law of domicile of the couple with regard to thelr legal capacity to marry one another.

5. In this case, neither party had the legal capacity to marry a person of the same sex under the Iaws of their respective domicile - Florida and the United Kingdom. As a
result, their marriage is not legally valid under Canadian law.

6. Not being legally married to each other, the Joint Applicants are not "spouses" within the meaning of the Divorce Act, and the Court has no to grant them a divorce as it is not legally possible to end a marriage that was void ab initio. "


Anyone in the audience familiar with international private law enough to explain the "legal capacity" argument?

(crossposted on g+)
posted by saizai at 11:55 AM on January 12, 2012


er, "… parties to the marriage must satisfy both…"
posted by saizai at 11:57 AM on January 12, 2012


blucevalo: I did not in any way mean to imply that your (or anyone's) marriage is meaningless, and I'm truly sorry if I gave that impression. I was questioning the legal significance of a Canadian marriage certificate in a jurisdiction that doesn't recognize it. The emotional significance, of course, is immeasurable. I'm sorry if my comment seemed to minimize or belittle that, to you or anyone else. :(

My heart goes out to anyone caught in the middle of this or a similar mess, and I hope there's some comfort in knowing that your struggles are shaping history: future generations will not speak of "gay marriage", only of "marriage", and take those rights for granted, and it'll be because of the crap you're going through now. Sucky, and yet kind of awesome. *salutes*
posted by mie at 12:50 PM on January 12, 2012 [1 favorite]


Dan Savage: I’d like to know, if a Jewish man was to marry a Saudi woman, which is illegal in Saudi Arabia, in Canada would it be a legally recognized marriage?
posted by TheWhiteSkull at 1:07 PM on January 12, 2012 [1 favorite]


mie: Thank you for your gracious comment. I'm sorry I overreacted. My sincere apologies.
posted by blucevalo at 1:11 PM on January 12, 2012 [1 favorite]


Looks like the government has realized it stepped in it.
posted by LN at 1:17 PM on January 12, 2012


I think, if said Jewish man were to come to Canada, without residency, and request a divorce, he would be denied the divorce, because he does not qualify for one under Canadian law under the principle that he did not reside long enough in Canada to qualify, and is not legally married where he did reside, so he cannot have a divorce. If said jewish man lived here the requisite time with his Saudi wife, and was considered legally married in Canada (which living together alone will get you pretty close), then he would be granted a divorce, as would the original couple in question.

It is a weird situation.
posted by Bovine Love at 1:18 PM on January 12, 2012 [1 favorite]


Dan Savage is framing the question incorrectly. If a jewish man married a saudi woman in Canada and they were both Canadian residents, then yes, the Canadian government would recognize it. And they would also recognize a divorce of that couple. Likewise, if Dan Savage and his husband move to Canada (rather than just using it as a Vegas-style locale in which to get married, I might add) their marriage will be recognized, and so will any subsequent divorce.

This is a sticky legal issue that has not actually that much to do with same-sex marriages per se, and more to do with a strange division of powers regarding marriages and divorces between the Canadian federal govt and the provinces, along with attendant common law principles regarding capacity to marry and the relevance of domicile/residency.

Or, what Bovine Love just said.

(On the other hand, the fed govt could easily pass a statute modifying the Divorce Act to allow the granting of a divorce for any marriage that was initially granted in Canada.)
posted by modernnomad at 1:29 PM on January 12, 2012


From that CBC report: A senior government source told the CBC Thursday that the prime minister's office was unaware of the submission until it came to light in a media report.

So somebody at Justice wasn't following Treasury Board policy after all. That's career limiting.
posted by bonehead at 1:31 PM on January 12, 2012 [2 favorites]


Incompetence is an unstoppable force...
posted by Bovine Love at 1:35 PM on January 12, 2012 [1 favorite]


The National Center for Lesbian Rights says:

We write to respond to a news report from Canada that a lawyer in the current government has taken a position in a trial-level divorce proceeding that a same-sex couple’s marriage is not valid because the members of the couple were not Canada residents at the time that they married, and the law of their home jurisdiction did not permit them to marry at the time.

No one’s marriage has been invalidated or is likely to be invalidated. The position taken by one government lawyer in a divorce is not itself precedential. No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada.

Canada permits non-residents to marry and thousands of non-resident same-sex couples have married there since Canada first began recognizing the freedom to marry for same-sex couples in 2003. Indeed, Canada’s Parliament codified the equal right to marry for same-sex couples in 2005.

The message for same-sex couples married in Canada remains the same as it is for same-sex couples validly married here in the United States: take every precaution you can to protect your relationship with legal documents such as powers of attorney and adoptions, as you may travel to jurisdictions that don’t respect your legal relationship. There is no reason to suggest that Canadian marriages of same-sex couples are in jeopardy, or to advocate that people try to marry again elsewhere, as that could cause these couples unnecessary complications, anxiety, and expense.
posted by gingerbeer at 2:00 PM on January 12, 2012 [2 favorites]


(On the other hand, the fed govt could easily pass a statute modifying the Divorce Act to allow the granting of a divorce for any marriage that was initially granted in Canada.)

I'm not sure what this would accomplish. Canadian law has no control over disposition of the property of the marriage, other than that which is actually in Canada. Waving around a divorce decree for a marriage that a Florida court considers never to have existed isn't going to get you very far.

Bottom line? Even if they do change the Divorce Act, it won't have any teeth in cases involving two nonresident foreigners.
posted by one more dead town's last parade at 2:04 PM on January 12, 2012


“I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada,” [Justice Minister] Nicholson said.

So it does look like a screw-up after all, and probably one that will be reversed by Cabinet very shortly. I suspect the most lasting outcomes will be felt at Justice for causing this in the first place.
posted by bonehead at 2:50 PM on January 12, 2012 [1 favorite]


Bottom line? Even if they do change the Divorce Act, it won't have any teeth in cases involving two nonresident foreigners.

That may not be true (IANAL). If the couple resides in a state that recognizes same-sex marriages, and one of them wants to get remarried, they may need to show the paperwork that yep, really truly divorced.

But I don't know what the laws are in the various gay-marriage-is-okay-by-us states - like, if you got gay married in Canada, can you get divorced in Massachusetts? Does it count in both places?
posted by rtha at 2:59 PM on January 12, 2012


rtha: You can get divorced in any jurisdiction that thinks you're married to begin with — but the divorce is from the POV of that jurisdiction. Nothing inherently forces another jurisdiction to accept it.

Within the US, that's forced by the "full faith and credit" clause, except for the whole DOMA thing.

I don't know what kinds of mutual credit agreements exist between countries in this regard.
posted by saizai at 3:21 PM on January 12, 2012


blucevalo: I kind of think that when someone's woken up to the news that their marriage may have been nullified, they're allowed at least one free pass on the 'over-reaction' thing. No worries. =)
posted by mie at 3:35 PM on January 12, 2012


Even if Harper personally had nothing to do with this, and it does get reversed with massive apologies, as it should, both to the couples affected and the Canadian people, I am compelled to maintain my 'fuck you, Stephen Harper' position.
posted by stavrosthewonderchicken at 3:42 PM on January 12, 2012 [4 favorites]


So somebody at Justice wasn't following Treasury Board policy after all. That's career limiting.

More like they weren't following PMO policy. There will probably be more of this "harmless" bullshit over the next 3 and a half years, as the Conservative trogs try to play to their trog base (and, in a pragmatic country like Canada, just how big of a socially conservative base can there be?), which means several years of dipshits from fuckwad, Alberta controlling the media conversation.

At the end of the day, Harper will only act on a socially conservative agenda if it makes his supporters money, or gets the Conservatives more votes. They were only at 35% of the popular vote last time, and need to do better.
posted by KokuRyu at 3:52 PM on January 12, 2012


If the couple resides in a state that recognizes same-sex marriages, and one of them wants to get remarried, they may need to show the paperwork that yep, really truly divorced.

If the reside in a state that recognizes same-sex marriages, then that is the state where they would divorce.
posted by one more dead town's last parade at 4:00 PM on January 12, 2012


Just a thought: If you're writing in a thread where you know there are people whose marriages have just been annulled by a government lawyer, perhaps one could rethink the phrase, "... rather than just using it as a Vegas-style locale in which to get married, I might add ..."

Perhaps you just need an education: As someone who went across the border to Windsor in 2005 to publicly solemnify my commitment to my husband in the only jurisdiction at that time available to me, I can personally assure you that, first, "Vegas-style locale" does not even remotely describe Windsor, Ontario, Canada (unless you're just looking at that one downtown casino, sort of).

Second, the phrase "Vegas-style locale" implies that I and the other 5,000 non-Canadians who decided to have a north of the border fling one winter night, so we popped over the "Eh" line, got drunk, and had the Elvis impersonator over at the Tim Horton's do something totally hilarious and make us all fag-fake-married.

Perhaps that characterization of us wasn't what you intended. But it was most certainly the impression you left.

But you'll bear with me. I don't respond well to sudden news that one of my marriages, which I've had to solemnize in four different jurisdictions just to have (oh, let's just pick one of 1,200 little things) the ability to sit in a doctor's office with my spouse and not have some neanderthal nurse toss me out on my ass. I don't respond well at all to that.

Shoot me.

And Sean Gaudet: Suck my dick.
posted by AirBeagle at 5:54 PM on January 12, 2012 [2 favorites]


stavrosthewonderchicken: "Even if Harper personally had nothing to do with this, and it does get reversed with massive apologies, as it should, both to the couples affected and the Canadian people, I am compelled to maintain my 'fuck you, Stephen Harper' position."

Me, too, stav. Me, too.
posted by gingerbeer at 7:29 PM on January 12, 2012


Just a thought: If you're writing in a thread where you know there are people whose marriages have just been annulled by a government lawyer, perhaps one could rethink the phrase, "... rather than just using it as a Vegas-style locale in which to get married, I might add ..."

Yeah, sorry about that; I could see how that could come across a little more harsh than I intended. I guess I was trying to express a little frustration with Dan Savage, who appears to have read a headline and not really understand the actual legal issue here.

But to put you at ease, neither your marriage nor Savage's has been annulled as the result of a government lawyer making a courtroom argument (which has not even been accepted yet by a court) about the constitutional validity of the Divorce Act. Your marriage will continue to be recognized in Canada, and it will continue to not be recognized in jurisdictions where same-sex marriage remains (sadly) illegal. The only problem you may run into until an amendment to the Divorce Act is made (which I think we can expect within a couple of months if not sooner), will be able if you want to drive over the border again for a weekend with the intent of getting divorced.
posted by modernnomad at 7:59 PM on January 12, 2012


Okay, so we got Canadian gay married in 2005 (had our anniversary just 10 days ago), and we were not eligible to be legally married in California at the time. But then we got married *again* in California in 2008, and that one is still in effect. Any Canadian lawyers want to weigh in on whether our Canadian marriage is valid?

Well generally if you get the same bonus (+1 Gay Married) applied from two different sources, they don't stack but you go with the longest current duration, likely based on the caster level of the originating wizard/cleric. If you had both up simultaneously and they were ruled as separate effects, a targeted Dispel Marriage would only negate one instance, and the other effect would continue for the original duration. Same result if one of the two casters dismissed their effect, the other would still continue.

there's been a lot of DnD threads lately
posted by FatherDagon at 10:03 PM on January 12, 2012 [2 favorites]


‘Law of domicile’ should have no veto on the Constitution
posted by stinkycheese at 4:36 AM on January 13, 2012


CBC: Is same-sex marriage is at risk in Canada?
posted by stinkycheese at 4:38 AM on January 13, 2012


A Canadian law prof considered this potential problem back in 2006.
posted by modernnomad at 8:14 AM on January 13, 2012


I think the simplest solution to this would be to amend the Divorce Act to waive the one-year residency requirement for marriages that were performed in Canada and are not recognized by either party's domicile.

The thing about L and M's case that is particularly screwy is that while English law refuses to recognize the marriage, even as a civil partnership, it still won't let M enter into a civil partnership with someone else until the marriage is dissolved.
posted by one more dead town's last parade at 8:39 AM on January 13, 2012 [1 favorite]


good news, everybody! (and it took even less time than I anticipated).

Justice Minister declares all same-sex marriages legal and valid.
posted by modernnomad at 9:58 AM on January 13, 2012 [1 favorite]


And OBVIOUSLY it was all the Liberals' fault. Duh.
posted by Go Banana at 10:00 AM on January 13, 2012 [1 favorite]


Ah, that's good to see. I didnt think this 'new reality' would last a week, but they must have taken even more heat than i thought they would. Still, WTH was Harper thinking? Yes, I know he says he didn't know about it, but c'mon, this guy is a micro-manager. I can't help wondering if this was some kind of poorly conceived trial balloon, seeing what the public would put up with before they freaked out.
posted by stinkycheese at 10:30 AM on January 13, 2012


Nah, I can believe that Harper had nothing to do with this. If it was an initiative that started with the PM, the government would stick with it no matter what. The fact that they're willing to bend so quickly is evidence that he doesn't personally care about the issue. (And that that there isn't enough passion about it among Conservative supporters to make a go of changing the law worthwhile.)
posted by Kevin Street at 1:34 PM on January 13, 2012 [2 favorites]


Harper has shown in the past that he's quite willing to stick to his guns and let public opinion hang when he wants to. He's also very comfortable with letting other hang for him in the press, when he doesn't care to take the heat himself (just ask the Hon. Bev Oda).

Given his initial surprise and their swift reaction, I think this was entirely down to the Crown lawyer being too clever by half AND springing it on the PCO without warning. If Harper had wanted this, Minister Nicholson would be wearing it.
posted by bonehead at 1:53 PM on January 13, 2012 [4 favorites]


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