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Same-sex marriages (SSM) in Canada

Part 3:
2012 JAN-SEP: Federal conservatives promise
to fix divorce problem quickly. 16 month delay in
Parliament begins. Canadian census data on SSM.

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The following essay is a continuation of Part 2

2012-JAN: The federal government promises to fix the debacle:

Justice Minister Rob Nicholson maintained that there is no way to legally dissolve the marriage that has generated the controversy. But then he contradicted his statement by saying that his department will search for a solution. He said:

"I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada." ₁

Some civil rights groups have expressed concern that the legality of all same-sex marriages in Canada may be in doubt.

On JAN-12, Prime Minister Harper said:

"We're not going to reopen that particular issue. ... This is a complicated case and the Minister of Justice, I think, has put out a statement clarifying the government's position on that." ₁

Kirk Makin, Justice reporter for the Globe and Mail newspaper, wrote:

"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. ..."

"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." ₁

On JAN-13, Nicholson announced that the Harper government will change federal law to recognize same-sex marriages solemnized in Canada by visitors whose home states, provinces or countries do not allow sam-sex marriages. He said:

"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. ... 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 is completely unfair to those who are affected." ₂

Webmaster's comments: (Bias alert)

I find this entire fiasco very confusing.

• On the one hand, Prime Minister Harper is well known for keeping a phenominally tight ship. All members of the Cabinet, all Conservative Party Members of Parliament, all senior civil servants are kept on a very close leash. It is inconceivable to me that a Department of Justice lawyer could deliver such major testimony on such a hot-button topic, that affects many thousands of same-sex couples without Prime Minister Harper giving his prior approval for the attack.
  
  
• On the other hand, I cannot conceive of a scenario in which he would have found it beneficial  to orchestrate this radical attack on same-sex marriages. Many commentators are anticipating future attacks on same-sex marriage, the universal health care system, the abolition of capital punishment, abortion access, etc. Harper is also expected to resist physician assisted suicide if it became possible. He must have known that to attack same-sex marriage in this way would ignite the fears of Canadian voters and lose him votes from moderates in the next election.

It makes no sense. Perhaps there will be further developments that will clarify the federal government's attack on same-sex marriage.

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2012-FEB to SEP: Federal bill introduced to allow same-sex visitors married in Canada to return & divorce there:

On 2012-FEB-17, Justice Minister Rob Nicholson introduced to Parliament Bill C-32 the Civil Marriage of Non-Residents Act. This would amend the Civil Marriage Act so that same-sex visitors to Canada who married there could return and obtain a divorce. He said:

"Recently it came to light that there was an anomaly in our civil marriage laws. We are fixing the anomaly in the law." ₃

Unfortunately, the proposed amendment to the Civil Marriage Act might make the problem worse.

Visiting same-sex couples typically come to Canada to marry because the cannot be married in their home state or country. However, if they cannot be married at home, it is because same-sex marriages are not recognized there. If their marriage is not recognized there then they probably cannot get a divorce there either. The proposed amendment would allow visitors to remain where they are living, to separate for a year, then return to Canada, and jointly apply for a divorce.

This sounds great in principle. However, it would require cooperation between the spouses -- an behavior that is often beyond their ability. The amendment would allow a single spouse to apply for a divorce. However, she/he would need either:

• The consent from their spouse, or
  
  
• A court order from their home jurisdiction finding that the other spouse is unreasonably witholding consent, is mentally disabled, or cannot be located.

However, if the home jurisdiction does not recognize the couple's marriage, it may be impossible for a spouse to obtain a court order.

Michael Cochrane, a family lawyer in Toronto, ON, Canada considers that the amendment is filled with "pretzel logic" that creates a "double standard." He said:

"The government is making a presumption that person could get that sort of an order from a court in a country that doesn’t recognize their marriage and is hostile to same-sex couples. It’s really making these couples jump through a lot of legal hurdles just to get a divorce." ₃

Same-sex and opposite-sex marriages involving citizens and residents of Canada can be dissolved for any of three reasons: marriage breakdown as demonstrated by separation for a year or more, cruelty, or adultery. But the wording of the amendment does not include the latter two. Even if the two grounds were allowed, it would be difficult to establish in a Canadian court cruelty or adultery that may have happened thousands of miles away in another country.

Whenever a same-sex couple wishes to get married in another jurisdiction, it is important that they clarify in advance what type of roadblocks they might encounter in obtaining a divorce. Unfortunately, few engaged couples consider divorcing as a possible future option. Fortunately, as an increasing number of states in the U.S. and an increasing number of countries around the world legalize same-sex marriages, same-sex couples who visited Canada to get married might have an increasing number of places where they can seek a divorce.

2012-SEP: Census data on same-sex marriages and common-law relationships:

Same-sex marriage became available to lesbians, gays and bisexuals in mid-2005.

Statistic Canada reported a near tripling in the number of same-sex married couples between 2006 and 2011:

• In the 2006 census, they counted 7,465 married same-sex couples and 37,885 common law same-sex couples.
  
  
• In the 2011 census, they counted 21,015 married same-sex couples and 43,560 common law same-sex couples.

However, just before the data was to be released, Stats Canada recognized a potential error in the data collection. They estimate that they may have over-estimated the number of married same-sex couples by as many as 4,500. Census manager Marc Hamel said:

"We observed that there was a possible over estimation of same-sex families. The counts for some smaller communities seemed too high. It could be related to how some people enumerated themselves. We seem to observe that in more transient communities where we have a lot of temporary workers coming in. So it could be people living together, for example, and reporting each other as married, but not necessarily to each other." ₇

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Kirk Makin, "Ottawa moves to defuse same-sex controversy," The Globe and Mail, 2012-JAN-12 & 13, at: http://www.theglobeandmail.com/
2. Thandi Fletcher, "All same-sex marriages declared legal and valid by justice minister Rob Nicholson," National Post, 2012-JAN-13, at: http://news.nationalpost.com/
3. Tamara Baluja, "Bill to close loophole in same-sex marriages creates 'double standard'," The Globe and Mail, 2012-SEP-06, at: http://m.theglobeandmail.com/

Copyright 2012 & 2013 by Ontario Consultants on Religious Tolerance
Latest update: 2013-JUN-19
Author: B.A. Robinson

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