US Citizen Married in Canada? You may only THINK you're married...

[Tawse]

http://www.globalpost.com/dispatch/news/regions/americas/canada/120112/canada-gay-marriage-same-sex-couples-not-legally-married


Apparently - there's a movement to make it so that if you can't legally get married where you live - then your marriage in Canada is null and void.

[girl_dee]

I read about this, this morning.. what a mess...

This happened in the states when one state allowed marriage and they had an influx of people running to get a license and get married. WHen they realized
no one was actually a state citizen they stopped it and issued mandates for state citizenship (UNless you came from a state that allowed gay marriage) and grandfathered the previous ones in.

They better come up with something, I don't think they want to mess with a bunch of queers stuck in marriages they don't want to be stuck in!

[Tawse]

my problems are these:


#1 - don't encourage people to come get married in your country (have them pay the fees etc) and then say "PSYCH!" That's rude.


#2 - What about couples where one is a Canadian citizen and one is not? What now? Am I not married but Gillian is? Are neither of us married?

[girl_dee]

I know! It's awful, they were selling wedding packages for folks to come here to get married.

One of the states in the US adopted the rule that one of the parties had to be a citizen residing more than one year.

I have NO idea how Canada is going to handle this or what the rules actually were. And if any rules were broken when these licenses were issued, whose fault is that!?

It's going to be a tax, custody and benefit nightmare if all these marriages are overturned. They cannot possibly realize the ramifications of making this happen.

[Tawse]

Really wish it didn't snow up there - I'd move in a heartbeat (yes this is still all the US's fault since they are the idjits with their heads stuck up their asses).

[EnderD_503]

More than likely the reason the "Canadian government" (since Harper has come to power, now known as the "Harper Government" according to official government letterhead) is doing this is because same-sex marriage was made legal in Canada under a Liberal federal government. Since coming to power, Harper has vowed not to challenge human rights laws the Liberals put into place (same-sex marriage and abortion rights among them). However, he and his rightwing, evangelist MPs have gone out of their way to make it extremely difficult for women to find abortion clinics across Canada. Additionally, he and his MPs have rallied in order to make it difficult for women in impoverished countries with very few, if any, women's rights, where the organisation of Planned Parenthood also operates, to get abortions or birth control. These MPs (backed by Harper) claimed they did not want to "push Canadian values on the traditional values of other nations."

And this appears to be the same approach this conservative Harper Government (TM) is taking with same-sex marriage. They won't try to seriously reopen the question in Canada, however, they are going to try to hinder the process as much as they can. They are doing so again with this attempt at reneging marriage certificates of non-Canadians in Canada, when any other marriage would be perfectly legal. This is their way of sticking it to same-sex couples, simply because they can't do it to same-sex Canadian couples.

[Words]

Blue (US) and I (UK) heard when W/we got married in Vancouver in 2004 that should W/we ever decide to divoce, one of U/us would have to live in Canada for a year beforehand. Since neither of U/us would ever be able to do that, it's probably the main reason W/we're still together;)

Seriously, though, it's taken them this long to come up with this? It's nuts.

Words

[Honey]

In the state of Maine I can marry my cousin but NOT my gf...talked about backwoods, inbred and fucked up !!

[Tawse]

Ditto that Words - that's what Gillian and I were told as well. 1 year residency = can file for divorce.

[betenoire]

I think this will go away. It might take going all the way to the Supreme Court of Canada - but it will go away.

Basically what seems to have happened (I've read every article I could find on the situation this morning) is that the couple tried to get a divorce in Ontario. Now, while Canada does not have residency requirements for Marriage it DOES have them for Divorce (yes, it's stupid).

So instead of doing the smart thing and making it so that anybody who got married here can get divorced here regardless of residency.....some douchebag was like "well, since you can't get divorced and your countries don't recognise your marriage anyway....I guess you're not really married."

It doesn't end here. I think we can count on the higher courts to fix this.

[suebee]

CBC article on same topic (http://www.cbc.ca/news/politics/story/2012/01/12/pol-harper-same-sex-marriage.html).

[foxyshaman]

Really wish it didn't snow up there - I'd move in a heartbeat (yes this is still all the US's fault since they are the idjits with their heads stuck up their asses).

For a second I thought you were blaming the US for our snow. I was willing to get behind you on this....

sorry for the de-rail. My brain can work in its own mysterious ways...

[foxyshaman]

CBC article on same topic (http://www.cbc.ca/news/politics/story/2012/01/12/pol-harper-same-sex-marriage.html).

I would be interested to know which government office was asked to do the opinion in the first place. I shall dig further. After having worked within the gov't for a long time, I do know it will take more than one opinion to change anything.

Thanks for posting the article Suebee. I would be interested in seeing the original applications filed before the courts which sparked this debate.

[Kobi]

Opponents of gay marriage tried the same tactic here in Massachusetts. It was shortlived and pretty pathetic given the lameless of their rationale.

Each state has laws that govern the requirements for obtaining a marriage license and for denying one. "Recognition of a marriage outside of the Commonwealth" is not one of the reasons that can be used to deny a license here.

Is there something in Canadian law that allows a marriage license to be denied because the marriage would not be recognized somewhere else?

Divorce is trickier. Again, the laws of the state or country of jurisdiction prevail. In Mass, both straight and gay couples have to adhere to certain requirements in filing for divorce. Residency is just one of them.

[betenoire]

Is there something in Canadian law that allows a marriage license to be denied because the marriage would not be recognized somewhere else?


No there isn't.

[betenoire]

Justice Minister vows to clarify laws on same-sex marriages (http://www.theglobeandmail.com/news/politics/justice-minister-vows-to-clarify-laws-on-same-sex-marriages/article2300179/)

The federal government will consider changing the law to ensure non-residents married in Canada can obtain divorces, Justice Minister Rob Nicholson said Thursday afternoon.

Wading into a controversy that has quickly blown into an international cause célèbre, Mr. Nicholson made assurances the government “has no intention of reopening the debate on the definition of marriage.”

He said that under the current laws, the marriage in the case at the centre of the controversy cannot be dissolved in Canada in spite of the fact that the couple was wed in Toronto in 2005.

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

and further down:

The reversal of federal policy was revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married – a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.

So yeah, one lawyer said it. That doesn't make it law, it just makes him an asshole. (Why do none of the articles give his name?)

[Corkey]

WTF?? Seriously this is fucked up!! I go online and find out some asshat has dissolved my marriage WITHOUT our consent!! WTF???

http://unicornbooty.com/blog/2012/01/12/canadian-govt-dissolves-thousands-of-same-sex-marriages-including-dan-savages/

[suebee]

Now let's not get too excited about this yet. This is a conservative government. They can't really open up the debate on marriage equality again since it was a decision that went all the way to the Supreme Court that forced all the provinces to recognize the right of same-sex couples to marriage. This is just a back-handed tactic to appease the right-wingers. It will never stand up in court when it's challenged. If there is no residency requirement to get married then they cannot refuse a marriage license. If they refuse the license they are contravening the decision made by the Supreme Court some ten years ago. If they allow the marriage, they cannot refuse the divorce saying that the marriage didn't exist. This is right-wing politics Canadian-style. This decision will. not. stand.

Sue :floatbee:'s marriage is LEGAL!

[foxyshaman]

Now let's not get too excited about this yet. This is a conservative government. They can't really open up the debate on marriage equality again since it was a decision that went all the way to the Supreme Court that forced all the provinces to recognize the right of same-sex couples to marriage. This is just a back-handed tactic to appease the right-wingers. It will never stand up in court when it's challenged. If there is no residency requirement to get married then they cannot refuse a marriage license. If they refuse the license they are contravening the decision made by the Supreme Court some ten years ago. If they allow the marriage, they cannot refuse the divorce saying that the marriage didn't exist. This is right-wing politics Canadian-style. This decision will. not. stand.

Sue :floatbee:'s marriage is LEGAL!

Agree with you Suebee. One lawyer's opinion does not change the Supreme Courts ruling.

Our premier at the time was hell bent on not allowing gay marriage. But this is also the premier who got drunk around christmas time, went to a homeless shelter, threw around money and told "those lazy assholes to get a job". Oh the "good ol' boy" days.

[Corkey]

We don't live in Canada, close but not in it, and it isn't legal in this state. This sucks and is making me ballistic.

[suebee]

Agree with you Suebee. One lawyer's opinion does not change the Supreme Courts ruling.

Our premier at the time was hell bent on not allowing gay marriage. But this is also the premier who got drunk around christmas time, went to a homeless shelter, threw around money and told "those lazy assholes to get a job". Oh the "good ol' boy" days.

Oh yeah. I remember him. His worst vitriol was usually reserved for the "bums from the Maritimes". Uh - that would be ME! lol

Harper has to show his colours now and again - even if he knows that, in the end, nothing will come of it. I wonder how much of our tax dollars are going towards this frivolity?

[EnderD_503]

Agree with you Suebee. One lawyer's opinion does not change the Supreme Courts ruling.

Our premier at the time was hell bent on not allowing gay marriage. But this is also the premier who got drunk around christmas time, went to a homeless shelter, threw around money and told "those lazy assholes to get a job". Oh the "good ol' boy" days.

Although it's "only one lawyer" from the Department of Justice according to the articles, I really don't doubt that all the other conservative "good ol' boys" (including Nicholson himself, despite what he might say to the press) weren't in the dark about this and that they supported this "lone layer" testing the waters. A random Department of Justice lawyer isn't going to make such a huge proclamation that would affect thousands of marriages on Canadian soil without getting some kind of "ok" from a head honcho. Like others have said, Harper and co. show their true faces from time to time and anyone with a brain can see through it, but in front of the press they're snakes in the grass. Unlike the American breed of far right evangelist fundies who rave their bigotry from the rooftops, our breed are much more subtle, which is what allowed these previous Canadian Alliance bros to get into power in the first place.

So yeah, Supreme Court will likely reject it, I agree, but they still like to test the boundaries as far as how much they can even temporarily hinder same-sex marriage rights without outright waging war on it as they did before same-sex marriage laws were passed. It's the same as the whole Planned Parenthood fiasco. Harper kept his "PR face on" while Brad Trost and co. ranted and raved about how funding to International Planned Parenthood had already been cut. The application for funding was sitting on Oda's desk for over a year with no response, and they only got their funding after a stink was made about it. Same thing here. If nobody notices they'll passively allow certain rights to fall by the wayside, but as long as people notice they'll claim it was a "mistake" or a "lone" perpetrator and wait for another day to do the same until people believe "they would never do such a thing." But let's not kid ourselves. Shit like this will continue to happen. And as for the Supreme Court. The Harper government's two new appointments so far were right-leaning as expected, and he's got the opportunity to continue to stack the Supreme Court with at least two more appointments by the next federal election. So while it doesn't seem likely now, I sometimes do wonder about the changing face of the Supreme Court under his government.

*waits to be accused of being a conspiracy theorist* :p

But as for this particular fight. Yeah, I agree. This will die in Supreme Court.

[SoulShineFemme]

Mmm Hmm.. I'm watching this thread from here on out. My ex and I were so excited to marry in Canada (both of us from the United States).... Thinking that in the U.S. it would eventually stand... Fast forward 6 years and we can't undo it because neither of us lives there (yet). It's absolutely ridiculous. Inequality at its best. We had absolutely NO CLUE that we would have this much trouble down the road. It makes absolutely no sense, so here we wait. In limbo....

[Soon]

Ottawa moves to defuse same-sex controversy (http://www.theglobeandmail.com/news/politics/justice-minister-vows-to-clarify-laws-on-same-sex-marriages/article2300179/)

The Harper government has moved to defuse a growing controversy over same-sex marriage with a promise to make legal changes to ensure that non-residents married in Canada can obtain divorces.

Justice Minister Rob Nicholson said that the same-sex marriage that ignited the controversy cannot legally be dissolved, but his department will search for a solution.

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

The move came after The Globe and Mail revealed that the Justice 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.

Political opponents and gay activists feared the move signalled a reopening of the issue that would potentially cast the legality of same-sex marriage in doubt. However, Prime Minister Stephen Harper insisted Thursday afternoon that he would not do so.

“We're not going to reopen that particular issue,” Mr. Harper told reporters at a shipbuilding event in North Vancouver on Thursday afternoon, declining to elaborate beyond mentioning the release of Mr. Nicholson's statement.

“This is a complicated case and the Minister of Justice, I think, has put out a statement clarifying the government's position on that.”

While Mr. Nicholson’s announcement alleviated some concerns, it left one central question unanswered: Does the government consider marriages involving same-sex non-residents to be legal, or not?

A lawyer for the lesbian partners in the Toronto case, Martha McCarthy, praised the government for attempting to rectify the problem, but she said it must go further.

“They should make a public statement in which they clarify that these Canadian marriages are still valid and legal,” Ms. McCarthy said.

The federal position in her case 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.

Mr. Hincks said in an interview that the federal intervention has doubled his legal costs and added to the emotional trauma of his divorce. “I have been left to fight a very expensive battle that mostly has been to defend my position against an intervention by the Attorney-General of Canada,” he said.

Mr. Harper appeared caught off-guard earlier Thursday, when a press conference he had scheduled in Halifax was hijacked by questions about the same-sex controversy.

A government source, speaking on condition of anonymity, said that the Prime Minister’s Office cannot always effectively control how departments proceed on files. “There are many times where Department of Justice lawyers ... don’t do anything like what the government wants them to do,” the source said.

Dean Del Mastro, the parliamentary secretary to the Prime Minister, insisted that the Conservatives consider the issue of gay marriage closed. “There’s been absolutely no discussion within our party about this at all,” he said.

However, skepticism about the government’s motives continued to run rampant.

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.

Vancouver Mayor Gregor Robertson warned that human rights begin to erode when policy shifts take place in backrooms and obscure courtrooms rather than in highly visible legislation.

“The current position of the Justice Department is embarrassing, it's flat-out wrong and needs to change,” Mr. Robertson said.

Former Toronto mayor David Miller said any move that called into question same-sex marriage legalities would embarrass Canada in front of the world by upsetting the lives of couples who flocked to the city for marriages they had been denied in their home countries.

“I was so proud to be the mayor of a city that had the first same-sex marriages. It made a strong statement that everybody is welcome in our country,” Mr. Miller said.

Same-sex marriage was effectively legalized by the courts in 2004. A year later, the Liberal government of Mr. Martin passed a bill enshrining it in law.

More than 5,000 of the approximately 15,000 same-sex marriages that have taken place since then involved couples from the United States or other countries.

The couple in the Toronto divorce case – one of whom lives in Florida and the other in Britain – were wed in Toronto in 2005.

[Curley]

http://www.news1130.com/news/national/article/319018--ottawa-may-tweak-divorce-laws-over-foreign-same-sex-marriage

[betenoire]

LGBT Legal Groups: Canadian Marriages of Same-Sex Couples Are Not in Jeopardy (http://nclrights.wordpress.com/2012/01/12/lgbt-legal-groups-canadian-marriages-of-same-sex-couples-are-not-in-jeopardy/)

(San Francisco, CA, January 12, 2012)—The following is a joint statement from Lambda Legal, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Freedom to Marry:

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.

[betenoire]

Oh, and frankly I am really pissed at Dan Savage for adding to the (most likely unnecessary) upset with his "The Canadian Government Dissolved My Marriage!" tirade.

[girl_dee]

This was on my Facebook page this morning; I am not sure I trust the source but I thought I would share it just in case. I am in Canada but not up to speed on where the reliable news sources are.




Canadian Gov’t Dissolves Thousands of Same-Sex Marriages (Including Dan Savage’s)
POSTED BY KEVIN FARRELL ON JAN 12, 2012 IN POLITICS | 93 COMMENTS
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"Surprise! You're divorced."
Thousands of LGBT couples across the world awoke this morning to learn that they are no longer married.
A Department of Justice lawyer under Prime Minister Stephen Harper’s Conservative Party of Canada government has nullified all same-sex marriages performed in Canada in which the couples’ native country does not permit gays and lesbians to marry.
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. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married – a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.
The two women – professionals in the their early 30s – cannot be identified under a court order. But Martha McCarthy, a prominent Toronto lawyer who represents them, said the government’s about-face is astonishing.
“It is scandalous,” she said in an interview. “It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity.”
Ms. McCarthy, who played an instrumental role in the fight to legalize same-sex marriage, said Ontario has tried to duck the volatile test case by deferring to the federal government.
“It is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it,” she said. “All the while, they were handing out licences to perform marriages across the country to non-resident people.”
Newspapers across the world are covered in headlines about this savage and unprecedented attack on LGBT people.
Dan Savage, who wed his husband (now boyfriend) in Vancouver in 2005, weighs in:
There will be lawsuits, time and money will be wasted, oceans of ink and pixels will be spilled, before this issue—the full civil equality of gays and lesbians—winds up before the Supreme Court of Canada. I’m confident that justice will prevail—God bless the Canadian Charter of Rights and Freedoms—but the decision to reopen this issue is going to be one massive distraction for the Canadian government.
Gays and lesbians inside and outside of Canada are going to make sure of it.
Now if you’ll excuse me I need to go wake up my husband and tell him we got divorced last night.
Critics of this attack on LGBT people have noted both online and off that if gay marriages are now without legal standing in Canada if the couple’s homeland forbids them, are Middle Eastern women living in Canada now stripped of their rights to vote, drive a car, or even show their hair? Is being gay now punishable by death in Canada if you’re from Uganda? Is blogging or criticizing your government now illegal for Egyptians living in Canada?
We can hardly believe we are reporting this. Expect massive coverage in the coming days.
How would you feel to wake up divorced by a foreign government after years of marriage?

[Truly Scrumptious]

Same-sex marriage law to be changed to recognize gay tourists

"The Harper government is working quickly to change the law so that the marriages of the thousands of gay couples who travel to Canada to wed are legally recognized in this country.

“We want to make it very clear that in our government’s view, these marriages should be valid,” a senior government official told Postmedia News on Friday.

“That’s why we will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.”

The legislative change will apply to all marriages performed in Canada regardless of the laws of the jurisdiction in which the couple live, the official said."

The residency requirement for divorce remains unchanged at this point, though one has to wonder how it even makes any sense. How can two people who are not Canadian citizens or permanent residents spend a year here anyway?

Full article:

http://news.nationalpost.com/2012/01/13/harper-government-working-to-clarify-same-sex-marriage-law-so-all-marriages-are-correctly-recognized-in-canada/

[SoNotHer]

I am a US citizen who married a Canadian. We have been in the process of divorce. We had did have to go through a formal divorce process, and one of us had to a be a resident.

I would like to see/know how this issue shakes out ultimately and how it impacts the queer community ultimately.

[Truly Scrumptious]

Well, the law is there’s a one year residency requirement for a divorce in Canada, I get that. And it seems simple enough if one of you is a Canadian resident, but what about when both parties live in another country? It’s not like they can just come here and wait the year out, unless they are financially able to live for a year without an income (not to mention visa requirements which I am assuming could be extended under those conditions). Unless there’s a provision for this through Immigration Canada (which I doubt), I’m not sure how it’s even feasible.

When same sex marriage became legal here, the facts were clear: any couple could come here and get married, but that marriage would not be legal in the couple’s home country if same sex marriage wasn’t already legal there. It seems almost preposterous to imagine that the possibility of divorce was never considered, or provisioned for.

[foxyshaman]

Although it's "only one lawyer" from the Department of Justice according to the articles, I really don't doubt that all the other conservative "good ol' boys" (including Nicholson himself, despite what he might say to the press) weren't in the dark about this and that they supported this "lone layer" testing the waters. A random Department of Justice lawyer isn't going to make such a huge proclamation that would affect thousands of marriages on Canadian soil without getting some kind of "ok" from a head honcho. Like others have said, Harper and co. show their true faces from time to time and anyone with a brain can see through it, but in front of the press they're snakes in the grass. Unlike the American breed of far right evangelist fundies who rave their bigotry from the rooftops, our breed are much more subtle, which is what allowed these previous Canadian Alliance bros to get into power in the first place.

So yeah, Supreme Court will likely reject it, I agree, but they still like to test the boundaries as far as how much they can even temporarily hinder same-sex marriage rights without outright waging war on it as they did before same-sex marriage laws were passed. It's the same as the whole Planned Parenthood fiasco. Harper kept his "PR face on" while Brad Trost and co. ranted and raved about how funding to International Planned Parenthood had already been cut. The application for funding was sitting on Oda's desk for over a year with no response, and they only got their funding after a stink was made about it. Same thing here. If nobody notices they'll passively allow certain rights to fall by the wayside, but as long as people notice they'll claim it was a "mistake" or a "lone" perpetrator and wait for another day to do the same until people believe "they would never do such a thing." But let's not kid ourselves. Shit like this will continue to happen. And as for the Supreme Court. The Harper government's two new appointments so far were right-leaning as expected, and he's got the opportunity to continue to stack the Supreme Court with at least two more appointments by the next federal election. So while it doesn't seem likely now, I sometimes do wonder about the changing face of the Supreme Court under his government.

*waits to be accused of being a conspiracy theorist* :p

But as for this particular fight. Yeah, I agree. This will die in Supreme Court.


Conspiracy accusations aside ;)

It has been my experience that small departments within the Department of Justice, do, all the time, opinions that are no "ok"ed by the Big Boys. I am not saying that Nicholson and others were in the LIGHT; however, it would appear as though a lawyer was assigned the task of preparing a briefing note and opinion based on a question, posed by another lawyer within the Department. A divorce case, as has been described here, is a test case. And a very good one.

While I am sorry SoulShineFemme that you, and others, are caught in limbo, this appears to be a very intrinsic question to be answered. Can someone be legally divorced in a country that does not recognize them as married. It appears that perhaps the rulings made by the Supreme Court were short sighted, or perhaps overly optimistic, in not considering that question. The Supreme Court ruled on the 'rights' of same sex couples to be married. They were not asked to consider, or rule, on whether a divorce would be obtainable within a less open minded jurisdiction - residency requirements aside.

I cannot comment specifically on the laws regarding residency requirements for divorce. I do have compassion for individuals seeking divorce and having to incur, on top of those expenses, further costs to legally prove they are married, therefore eligible for divorce.

I attended many of the hearings where I live regarding this issue, and was surprised, and humbled, by the number of people who came out to support same sex marriages. Despite being the Red Neck Capital of Canada, well except maybe Regina, but I am not throwing stones ;). I am confident that the Harper gov't, despite its valium like qualities, has no intention of back tracking on this issue. This is an important issue to be resolved. I am interested to see what policy has to be put into place to ensure divorces for those couples who are not residents.

[ONLY]

Conspiracy accusations aside ;)

It has been my experience that small departments within the Department of Justice, do, all the time, opinions that are no "ok"ed by the Big Boys. I am not saying that Nicholson and others were in the LIGHT; however, it would appear as though a lawyer was assigned the task of preparing a briefing note and opinion based on a question, posed by another lawyer within the Department. A divorce case, as has been described here, is a test case. And a very good one.

While I am sorry SoulShineFemme that you, and others, are caught in limbo, this appears to be a very intrinsic question to be answered. Can someone be legally divorced in a country that does not recognize them as married. It appears that perhaps the rulings made by the Supreme Court were short sighted, or perhaps overly optimistic, in not considering that question. The Supreme Court ruled on the 'rights' of same sex couples to be married. They were not asked to consider, or rule, on whether a divorce would be obtainable within a less open minded jurisdiction - residency requirements aside.

I cannot comment specifically on the laws regarding residency requirements for divorce. I do have compassion for individuals seeking divorce and having to incur, on top of those expenses, further costs to legally prove they are married, therefore eligible for divorce.

I attended many of the hearings where I live regarding this issue, and was surprised, and humbled, by the number of people who came out to support same sex marriages. Despite being the Red Neck Capital of Canada, well except maybe Regina, but I am not throwing stones ;). I am confident that the Harper gov't, despite its valium like qualities, has no intention of back tracking on this issue. This is an important issue to be resolved. I am interested to see what policy has to be put into place to ensure divorces for those couples who are not residents.

I put in red in your post what I am addressing.
I am also very interesting in knowing more about a policy to ensure divorces for couples who are not residents. As you have read in SS (f) (SoulShineFemme) post this affects her and also myself. As I do live in Canada, we are hoping at one point that maybe she can stay for a year and then hope she can divorce, and eventually live here. If anyone knows anything to help us out, please let me know (PM me, if you like). Thank you.

[Truly Scrumptious]

I put in red in your post what I am addressing.
I am also very interesting in knowing more about a policy to ensure divorces for couples who are not residents. As you have read in SS (f) (SoulShineFemme) post this affects her and also myself. As I do live in Canada, we are hoping at one point that maybe she can stay for a year and then hope she can divorce, and eventually live here. If anyone knows anything to help us out, please let me know (PM me, if you like). Thank you.


Under current law, I think the only options are:

SSF could apply for immigration under the “skilled worker” class, or maybe she could even apply to study here (assuming she would like to go to school) and then once she is in Canada, she can file for divorce (keep in mind that the skilled worker class is the most difficult class of immigration and takes the longest)

or

SSF could come and live with you in Canada for a year and then file for divorce. To do that she would have to leave after 6 months and return so that she could get another 6 month stamp
on her passport . . . then she could file for divorce. She wouldn’t be able to work or be eligible for Medicare during this time. After her divorce, you could apply to sponsor her for immigration under the family class. (You would not be able to sponsor her while she is married to someone else.)

[suebee]

Ottawa moves to defuse same-sex controversy (http://www.theglobeandmail.com/news/politics/justice-minister-vows-to-clarify-laws-on-same-sex-marriages/article2300179/)

The Harper government has moved to defuse a growing controversy over same-sex marriage with a promise to make legal changes to ensure that non-residents married in Canada can obtain divorces.

Justice Minister Rob Nicholson said that the same-sex marriage that ignited the controversy cannot legally be dissolved, but his department will search for a solution.

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

The move came after The Globe and Mail revealed that the Justice 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.

Political opponents and gay activists feared the move signalled a reopening of the issue that would potentially cast the legality of same-sex marriage in doubt. However, Prime Minister Stephen Harper insisted Thursday afternoon that he would not do so.

“We're not going to reopen that particular issue,” Mr. Harper told reporters at a shipbuilding event in North Vancouver on Thursday afternoon, declining to elaborate beyond mentioning the release of Mr. Nicholson's statement.

“This is a complicated case and the Minister of Justice, I think, has put out a statement clarifying the government's position on that.”

While Mr. Nicholson’s announcement alleviated some concerns, it left one central question unanswered: Does the government consider marriages involving same-sex non-residents to be legal, or not?

A lawyer for the lesbian partners in the Toronto case, Martha McCarthy, praised the government for attempting to rectify the problem, but she said it must go further.

“They should make a public statement in which they clarify that these Canadian marriages are still valid and legal,” Ms. McCarthy said.

The federal position in her case 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.

Mr. Hincks said in an interview that the federal intervention has doubled his legal costs and added to the emotional trauma of his divorce. “I have been left to fight a very expensive battle that mostly has been to defend my position against an intervention by the Attorney-General of Canada,” he said.

Mr. Harper appeared caught off-guard earlier Thursday, when a press conference he had scheduled in Halifax was hijacked by questions about the same-sex controversy.

A government source, speaking on condition of anonymity, said that the Prime Minister’s Office cannot always effectively control how departments proceed on files. “There are many times where Department of Justice lawyers ... don’t do anything like what the government wants them to do,” the source said.

Dean Del Mastro, the parliamentary secretary to the Prime Minister, insisted that the Conservatives consider the issue of gay marriage closed. “There’s been absolutely no discussion within our party about this at all,” he said.

However, skepticism about the government’s motives continued to run rampant.

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.

Vancouver Mayor Gregor Robertson warned that human rights begin to erode when policy shifts take place in backrooms and obscure courtrooms rather than in highly visible legislation.

“The current position of the Justice Department is embarrassing, it's flat-out wrong and needs to change,” Mr. Robertson said.

Former Toronto mayor David Miller said any move that called into question same-sex marriage legalities would embarrass Canada in front of the world by upsetting the lives of couples who flocked to the city for marriages they had been denied in their home countries.

“I was so proud to be the mayor of a city that had the first same-sex marriages. It made a strong statement that everybody is welcome in our country,” Mr. Miller said.

Same-sex marriage was effectively legalized by the courts in 2004. A year later, the Liberal government of Mr. Martin passed a bill enshrining it in law.

More than 5,000 of the approximately 15,000 same-sex marriages that have taken place since then involved couples from the United States or other countries.

The couple in the Toronto divorce case – one of whom lives in Florida and the other in Britain – were wed in Toronto in 2005.


I'm wondering if some folks missed the above post. And here's another article (http://news.sympatico.ctv.ca/home/justice_minister_says_all_same-sex_marriages_valid/7c6a4a45).

[Cin]

I'm wondering if some folks missed the above post. And here's another article (http://news.sympatico.ctv.ca/home/justice_minister_says_all_same-sex_marriages_valid/7c6a4a45).

I'm sorry. I don't understand. I would like to respond but I'm not sure to what and I don't want to misconstrue what you are saying and write a bunch of stuff that has nothing to do with your point. Toward that end I am asking for a little clarification as to what gives you the impression that some people missed the post you mentioned. I got the impression that the conversation had moved on to now what are people's options under the current law to get a divorce when both parties live outside of Canada. But perhaps I missed something.

[ONLY]

I'm wondering if some folks missed the above post. And here's another article (http://news.sympatico.ctv.ca/home/justice_minister_says_all_same-sex_marriages_valid/7c6a4a45).

I read the article and here is the part I am addressing "Canada's justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to." and if this means what I think it means then we are on the right track (as far as SS (f) and I are concerned, for our situation)
Thanks suebee for the article ;)

[SoulShineFemme]

I'm wondering if some folks missed the above post. And here's another article (http://news.sympatico.ctv.ca/home/justice_minister_says_all_same-sex_marriages_valid/7c6a4a45).


Thanks for posting the second article as well, Suebee. It gives me some hope. :)

[Truly Scrumptious]

The federal government introduced a bill Friday that declares same-sex marriages "valid for the purposes of Canadian law" and lays out rules for same-sex divorce for non-residents.

The measures are aimed at closing a legal loophole that could have undermined thousands of gay marriages around the world.

The bill, called an act to amend the Civil Marriage Act, says it establishes a "new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage."

The amendments would allow a court in the province where the marriage was performed to grant a divorce if there has been a breakdown of the marriage as "established by the spouses having lived separate and apart" for at least one year before a divorce is requested.

A similar one-year separation period exists for residents of Canada to be eligible for a divorce.

The divorce for non-residents would only be granted if neither spouse lives in Canada at the time the divorce is requested, by one or both individuals.

They also have to have lived in a state where a divorce cannot be granted because the marriage is not recognized as valid for at least one year, the amendments state.

The bill introduced Friday makes no proposed amendments to the Divorce Act, and the measures only apply to non-residents.

The new rules, if the bill is passed, would not address issues such as child or spousal support. Any arrangements for property, custody and access to children or support will be determined in the jurisdiction where the couple lives, the Justice Department said in a news release.

Canada's marriage laws do not have a residency requirement. But federal divorce laws do, and that means same-sex couples who travel to Canada to marry because the jurisdiction in which they live does not marry gays or lesbians run the risk of not having the legal means to divorce if the relationship sours.

The proposed changes have been prompted by a divorce case in Ontario involving a same-sex couple. The unidentified lesbian couple married in Canada in 2005 but split up in 2009. The partners are living in Florida and the United Kingdom. Both women want a divorce, but cannot get one where they now live because the state of Florida does not recognize their marriage, and though the U.K. grants civil partnerships to same-sex couples, it does not recognize the Canadian marriage.

Legal documents filed by the federal government in the case had argued that even though the couple married in Canada, the two couldn't be considered legally married because it wasn't recognized in their U.S. and United Kingdom homes.

Gay rights activists and opposition politicians accused the Tories of trying to rewrite the rules on same-sex marriage to suit their own agenda.

But the government says its opinion is that the marriages were valid and it doesn't want to reopen the debate on the definition of marriage.

"Recently it came to light that there was an anomaly in our civil marriage laws," Justice Minister Rob Nicholson said in a statement after the bill was introduced in the House of Commons. "We are fixing the anomaly in the law."

The lawyer in the case that brought the issue to light, Martha McCarthy, told CBC's Power & Politics on Friday, "We are grateful the bill addresses the validity of the marriages of non-residents and allows them to divorce. But the government set a fire and is now trying to get credit for putting it out."

http://www.cbc.ca/news/politics/story/2012/02/17/gay-marriage-loophole.html