179 replies to this topic

[August1991]

The gov't has made a U-turn apparently. No longer will those marriages be null & void.

The government did not make a U-turn. Here is what the CTV article reports:

Non-resident couples who marry here must live in Canada for one year before they can legally divorce. The lesbian couple at the centre of the controversy has launched a constitutional challenge of that provision in the Ontario Superior Court of Justice.

Nicholson said he will be "looking at options to clarify the law so that marriages performed in Canada can be undone in Canada."

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I don't think anyone has been complaining about the residency requirements for divorce.

But from our perspective, that is the heart of the problem. We allow these foreigners to marry under Canadian law but then impose a residency requirement if they choose to divorce here.

These two women have no legal way to divorce and the justice lawyer was correct to raise this point.

This case poses a serious legal problem. We have two women who are legally married under Canadian law but who are unable to obtain a divorce anywhere. They don't meet Canadian residency requirements for divorce here and neither lives in a jurisdiction that recognizes same-sex marriage so they cannot obtain a divorce in Florida or England.

If Nicholson changes the divorce residency requirement for same-sex couples who marry in Canada, then presumably the same change would apply to different sex couples. IOW, couples could shop around for the best jurisdiction for a divorce and have their lawyer file on their behalf.

Edited by August1991, 12 January 2012 - 08:05 PM.

[August1991]

Aswell many inter-racial,inter-religious marriages are not recognized in some countries around the world!

Are you saying that these other countries should influence us in Canada in some way?

No, I am simply saying that what we consider a marriage may not be shared elsewhere in the world.

But your point raises another interesting facet to this case.

Proponents of same-sex marriage often made the argument that in the past, jurisdictions often forbade marriage between people of different races. The implication was that same-sex marriage will eventually be as accepted as mixed-race marriages are now.

This case illustrates how that comparison is misguided. After marriage, these two women returned to live ina jurisdiction that does not recognize same-sex marriage. Indeed, that is the source of their current problem. They have no way to dissolve their marriage.

In the case of mixed race marriages 50 or 60 years ago, how many such couples moved back to jurisdictions that did not recognize their union? More likely, they faced true discrimination there and had no desire to live in such an environment.

Edited by August1991, 12 January 2012 - 08:00 PM.

[g_bambino]

Indeed, that is the source of their current problem.

That isn't the source of their problem. Canada's divorce law is the source of their problem. Period.

[August1991]

That isn't the source of their problem. Canada's divorce law is the source of their problem. Period.

So now, we Canadians must change our divorce law to accommodate foreign gays.

And let me add: Foreign gays who freely choose to return to live in the jurisdictions where they are supposedly oppressed because they cannot marry.

In this 21st century debate, we are far, far from escaped slaves, mixed racial marriages, Jim Crow and sitting at the back of the bus. We are far, far from Lincoln, Voltaire and Galileo.

Edited by August1991, 12 January 2012 - 11:29 PM.

[cybercoma]

It's not just the divorce issue though. This is a key point:



Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

But they had no problem collecting the legal fees.

[g_bambino]

So now, we Canadians must change our divorce law to accommodate foreign gays.

We must? And only for foreign "gays"? It might be a good idea to change the divorce law for everyone's benefit; the government's and any couple married in Canada, whether residents, citizens, or foreigners, and of any self-applied sexual label or none. Then again, it might not.
[ed: +]

Edited by g_bambino, 12 January 2012 - 11:43 PM.

[g_bambino]

As I understand it, two foreigners who marry in Canada are, well, legally married in Canada.

And so they should be able to seek divorce in Canada, which the couple in question are doing. However, because of the way the divorce law is worded, they cannot without having lived a year in Canada, and they are mounting a Charter challenge against the divorce law as it stands, which, in itself, seems silly. However, the Crown attorney in this case has exacerbated the issue by making the inane argument that the couple can't be divorced in Canada because they aren't married because their respective home jurisdictions don't recognise same-sex marriage (though Britain does have same-sex civil unions, which are in law equated with marriage), leading all the anti-Harper conspiracy theorists out there (and there are a shocking number of them, even amongst what seem to be well educated people) to think they've finally discovered irrefutable proof of the present Cabinet's surreptitious and apparently highly Machiavellian anti-homosexuality agenda. The whole thing has gone off the rails and I'm shocked at the speed at which that's happened.
[ed.: +]

Edited by g_bambino, 12 January 2012 - 11:46 PM.

[August1991]

We must? And only for foreign "gays"? It might be a good idea to change the divorce law for everyone's benefit; the government's and any couple married in Canada, whether residents, citizens, or foreigners. Then again, it might not.

Bambino, you raise a good question that I wonder about too.

If two people can marry here, why can't they divorce here too? And my simple answer is that if it's hard to arrive at a deal and sign a contract, it's even harder to breach or break a contract.

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More broadly, what effect would such a change in residency have on the rest of us?

Or as I once said to MapleSyrup and BlackDog (both posters here), if it's mayonnaise, it has whole eggs. Otherwise, it's just salad dressing. Link

Gay marriage is not the same as female-male marriage.

Edited by August1991, 13 January 2012 - 12:12 AM.

[dre]

Divorce should be easy and cheap.

All these people are asking to do is ask the government to recognize their wish to disolve a private contract between them. If the couple is able to agree to the terms of the divorce without litigation, then hell... let em do it online for a 20 dollar administrative fee.

It makes no damn sense for the government to insist on continuing to recognize a contract that both parties have voluntarily disolved.


Divorce litigation is a different question. If they want to scrap it out over assets and property then that stuff can get pretty expensive and they should do it wherever they pay taxes.

[August1991]

Divorce should be easy and cheap.

I fundamentally disagree. Breach of contract (divorce) should be costly and difficult, as an incentive to avoid opportunistic contracts (unhappy marriages).

When you date or sleep around, you are free to choose. But when you marry, you cross the Rubicon, burn your bridges and commit.

Edited by August1991, 13 January 2012 - 12:23 AM.

[TimG]

That isn't the source of their problem. Canada's divorce law is the source of their problem. Period.

The residency requirement exists because without divorcing couples will shop around for the best venue to divorce. How are the courts supposed to divide property if one spouse wants to use Canadian law and another wants to use their home country?

[TimG]

All these people are asking to do is ask the government to recognize their wish to disolve a private contract between them.

The state has never accepted marriage as a private contract. It regularily overrides the terms of the private contract in the name of some arbitrary standard of "fairess". It is rather rediculous to appeal to this argument unless you want to argue that all marriages should be treated as private contracts which implies our existing divorce laws should be tossed out.

[Black Dog]

Rather than Canada changing its divorce laws, it's better for other jurisdictions to recognize our gay marriages.

[cybercoma]

I fundamentally disagree. Breach of contract (divorce) should be costly and difficult, as an incentive to avoid opportunistic contracts (unhappy marriages).

Nonsense. Making divorce more difficult will only lead to people being forced to stay in abusive relationships because they're stuck between a rock and a hard place and maybe their partner will change. Your suggestion is myopic and dangerous.

[cybercoma]

The residency requirement exists because without divorcing couples will shop around for the best venue to divorce. How are the courts supposed to divide property if one spouse wants to use Canadian law and another wants to use their home country?

What are you talking about? If you get a divorce in Canada, you use Canadian law. End of story. The courts don't apply foreign laws.