SAME-SEX MARRIAGES IN COURT
Legal fight ‘a slap in the face’ of gay community
Thousands of foreign gay couples who wed in Canada are not legally married, a government lawyer is arguing in a case involving two lesbians seeking a divorce.
But that position is “problematic politically,” according to a University of B.C. legal expert.
“This is hugely problematic politically because we have, as a country, been holding out to foreign couples for years that they can come here — and we take quite a bit of their money into our marriage industry — and get legally married,” said UBC law professor Susan Boyd, a family law expert.
The challenge has arisen as the result of a divorce application recently filed in Toronto by a lesbian couple, who hail from Florida and England who married in Ontario in 2005. Their case will be heard in Ontario Supreme Court next month.
Department of Justice lawyer Sean Gaudet pointed out in a submission that under the federal Divorce Act, couples can only divorce in Canada if they have lived in the country for at least a year, and if their marriage was recognized in their home countries.
Same-sex marriage has been permitted in the country since the early 2000s and was enshrined in law in 2005.
Boyd stressed that any decision resulting from the case will not affect the legal standing of the same-sex marriages of Canadian citizens or permanent residents.
If the couple are not granted a divorce they could still seek custody, spousal support and division of assets under laws governing domestic partnerships.
Meanwhile, Justice Minister Rob Nicholson said on Thursday afternoon that he would work to clarify the law so that marriages performed in Canada can be undone in Canada.
And Prime Minister Stephen Harper announced that his government had no intention of reopening the debate on same-sex marriage.
Still, some worry the case could put a damper on the gay-marriage tourism industry, if out-of-country couples believe their marriages here may not technically be legal.
Darryl Persello, a Vancouver wedding planner with 2 Dears and a Queer (2DQ) — which helps out-of-country same-sex couples get married in B.C. and has done about 125 weddings since 2004 — called the legal position a “slap in the face” for the LGBTQ community and a hindrance to tourism.
“Couples that are coming up here are spending a lot of money. They are staying in nice hotels, going to nice restaurants, going for honeymoons in Victoria or Whistler. As this gets out there to the international gay community, maybe they will have second thoughts about coming up,” he said.
It didn’t take long for the Harper government to do the right thing yesterday after news got out that a Justice Department lawyer representing Ottawa in a same-sex divorce case believed gay and lesbian foreigners who wed in Canada weren’t really married if their homelands didn’t recognize the unions.
After several hours when many feared the Tories were launching a sneak attack on equal marriage, Justice Minister Rob Nicholson said the government would consider changing the law so homosexuals from other countries who married in Canada could also obtain divorces here.
Thank goodness saner heads are prevailing than the melon that balances atop the neck of federal lawyer Sean Gaudet. Whether he was acting alone, taking orders from someone higher up, or even right in law, Gaudet’s argument isn’t in the public interest. If Canada is going to marry foreign homosexuals — and accept their tourism dollars — it’s only fair that we provide a way for them to divorce if their relationships fail.