Gay Divorce Drama Recap

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A justice department lawyer sparked a media frenzy last week when he told a foreign lesbian couple who were married in Canada and seeking a divorce that there was no need, arguing that same-sex marriages performed in Canada are not “legally valid” unless also recognized by a couple’s home country. In addition, he cited that a married couple must reside in Canada for one year before they can be divorced.

This was the first case of a foreign couple, married in Canada, who applied to divorce. Since same-sex marriage was first legalized in parts of Canada in 2003, there have been approximately 15 000 same-sex marriages performed in Canada, of which approximately 5000 involved non-residents.

At a press conference on Thursday, Prime Minister Harper claimed that he had just became aware of the issue and refused to answer questions, maintaining, however, that the government will not reopen the debate around same-sex marriage.

Meanwhile, the story became international news, with celebrities like Dan Savage and LGBT-rights organizations like EGALE accusing the government of purposefully attacking equal marriage rights.

On Friday, Conservative Justice Minister Rob Nicholson made an announcement: “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.” Nicholson also stated that the government will be “looking at options to clarify the law so that marriages performed in Canada can be undone in Canada. The situation where someone can be validly married in Canada and then not be able to dissolve their marriage because they cannot meet the residency requirement is something we need to address.” Shifting the blame to the Liberal party, he stated that the problem was due to a “legislative gap left by the Liberal government in 2005.”

Though the Conservative government claims that they just became aware of the issue, the NDP claims that this is part of an attempt by the Harper government to roll back equal marriage rights. In a press release on Thursday, Randall Garrison, the NDP critic for LGBT issues, stated: “This isn’t something that happened over night, this has been going on for months now. It was a government lawyer that was once again trying to use a loophole in the current law to erode the rights of these families. It is hard to believe that no one in Cabinet knew about this as I had asked the Minister of Justice about this problem in the House of Commons last October.”

Garrison also cited that this is the second time that the Harper government has intervened in a same-sex marriage court case. In October, they intervened to try and deny legal validity to gay civil partnerships from the UK.

In an interview with CTV, Queen’s University Law professor Kathleen Lahey stated that “I’m not convinced that this is just a fluke or an accident that this argument was raised in this way,” and that “if opening that act up is supposed to introduce a fix, then presumably someone might want to do something else with it while it is open and in front of Parliament.”

One thing is for sure: if this was in fact a strategy used by the Harper government to purposefully erode equal marriage right, it has severely backfired. This comes at a particularly bad time for the Conservative government, as they are being chastised internationally for backing out of Kyoto, while at the same time lobbying for Canada’s so-called “ethical oil”. It remains to be seen how exactly the Conservative government will propose to change the Civil Marriage Act and Divorce Act, but it would seem, for the moment, that equal marriage rights will be maintained in Canada.

Photo by Tristan Harris & Les Blow [sic]