January 14, 2012

Justice Minister Rob Nicholson says “our government has no intention of reopening the debate on the definition of marriage.”

OTTAWA—In a victory for same-sex divorce rights, what Canada has joined, Canada will allow the courts to put asunder, the Conservative government says.
Two divorcing women, their lawyer and the powerful political advocates who supported them, expressed delight with an emphatic promise by the Conservative government that it will rewrite Canada’s marriage law to ensure same-sex marriages are “legally valid” and open to divorce — even if the marriages are not recognized abroad.
In a Friday speech to the Canadian Club in Toronto, Justice Minister Rob Nicholson blamed the Liberals for poor lawmaking in the first place. He said the Conservative government will change the Civil Marriage Act — but not the Divorce Act — to allow non-resident same-sex marriages to be dissolved.
But a prominent social conservative opponent of same-sex marriage slammed the Conservatives and warned Prime Minister Stephen Harper would pay a political price for his “cynical, anti-democratic” move.
Casting himself as more pro-equality, progressive and masterful at legislative drafting than the Liberals, Nicholson said “our government has no intention of reopening the debate on the definition of marriage.”
“This is a legislative gap left by the Liberal government of the day when the law was changed in 2005. The confusion and pain resulting from this gap, in my opinion, is completely unfair to those who are affected.
“I want to make it very clear that in our government’s view these marriages should be valid. 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.”
His remarks suggest he will not, as some had suggested was possible, remove the one-year Canadian residency requirement in the Divorce Act before a couple could seek a divorce, although justice department lawyers and Conservative cabinet ministers have privately assured the divorcing couple’s lawyer their particular case will be resolved swiftly.
In effect Nicholson is withdrawing the argument his own Justice Department lawyers had initially made in opposing a non-resident lesbian couple’s application for divorce. Federal lawyer Sean Gaudet had argued in writing the women’s marriage couldn’t be considered “legally valid” in the first place because it wasn’t recognized by their home country or state.
Known only by their initials, L and M, the women were seeking an uncontested divorce. They are believed to be the first non-resident same-sex couple to do so. Separated for more than a year, they are residents in Florida and the U.K., where same-sex marriage is not legalized. Married in Canada in 2005, they sought a constitutional exemption from the residency requirement to dissolve their marriage in Canada.
Their lawyer, Martha McCarthy, said the women’s case “does not engage” any other legal questions like property settlements or custody orders.
“They were relieved and pleased,” said McCarthy in an interview. “They are encouraged at the idea that we’re going to have an amicable and appropriate resolution.”
When a news story in The Globe and Mail brought the women’s story and the federal response to light, gay and lesbian activists and opposition critics charged the Conservatives were trying to undo gay marriage rights “by stealth.”
Charles McVety, who once led the Defend Marriage Coalition and now heads its successor organization, the Institute for Canadian Values, said it is “incredible that the Conservatives are tripping all over themselves to appease the same-sex community and give them special dispensation.”
He predicted that the government couldn’t make the change sought without reopening the Divorce Act to ease the one-year residency requirement, and predicted that would have led to the availability of “one-day quickie divorces,” which represent a greater threat to the family.
McVety said Harper continues to turn his back on social conservatives “by turning his back on abortion . . . and same-sex marriage” despite clear promises and private assurances to conservative supporters to the contrary “because he’s been politically successful” in doing so.
Egale Canada, a gay and lesbian rights advocacy group, praised the minister’s move, but suggested it was only a “good first step.”
Helen Kennedy, executive director of Egale Canada, said the promised amendment must be made retroactive “to ensure that the thousands of same-sex couples who have married since 2001 do not face the same uncertainty and anxiety in the future.”
She also said the Divorce Act should be amended to waive the residency requirement for couples who were married in Canada, “so that all marriages performed in Canada can also be dissolved in Canada.”