I'm not quite sure what kind of 'evidence' you want as sometimes things don't make it on the internet. It doesn't take long when you work with or for the various government departments to get their drift. I don't work for the Feds much anymore, mostly with DFO, AA or NRC, but the list of friends much further up the food chain than I, who still do or have recently left, is really long and what they tell me makes me glad I'm not on the payroll any more. The grief isn't worth it. There are very few longtime senior bureaucrats in the Ottawa and it's for good reason.
Harper social conservative agenda rears its head - moves against same sex marriage
- Thread starter fuji
- Start date
Heterosexuals do shop around for destinations, specially if their country of origin don't have divorce laws, they marry in north america but their marriages are not valid in the home countries since they are still considered married to their former spouses. This is just one of the instances where this problem may occur.
It's all about jurisdiction, no story here.
You really don't understand this issue at all. We are importing nothing. We are declining jurisdiction for the divorce for very logical reasons.
But the fact that you thought this was a Harper conspiracy, before you even knew how the issue was framed shows your biased starting point.
That would take a rather significant re-write of the Divorce Act. A total overhaul really.
I see how you could fall into the trap if you did not understand the issue. It is not a sneaky way of invaliding gay marriages. All the government is saying is that our courts don't have jurisdiction to do these divorces for non-residents. Let's take a minute to explore the issue.
Let's say someone came up here and got married, ie got a license, got the certificate and had the ceremony performed and recorded, just like any Ontarian. And let's say their marriage would not be recognized back in oh...Alabama. What determines the impact of the marriage is the actions of the couple and the laws of the jurisdiction they chose to live in.
So, let's say they decide to stay in Canada. Then there marriage would be 100% valid for all purposes under our laws and they would be legally treated like any other married couple.
Let's say they go back to Alabama to live and try to get some sort of spousal benefits. Alabama is perfectly within its rights to say "no" and not give them the spousal benefits and not give them a divorce. They also could not likely get a divorce here, depending on what they did with residency.
Let's say the go back to a state that has gay marriage. Then, they are good to go. Same thing if they go live in say...Belgium. They get treated fine. In fact, if they go live in Belgium and satisfy the residency requirements, or a state that allows gay marriage, they can get their divorce at home and have no need to come back to Canada. Everybody is happy.
The only time there is a problem is when they come in to Canada for a "tourist" wedding, and they, for whatever reason, need a divorce and can't get one back home.
The law in Canada, and many other jurisdictions, for very practical reasons, allows you to shop internationally for the jurisdiction where you want to get married. The law here, and in many other jurisdictions does not allow you to shop internationally for the jurisdiction where you want to get divorced. There are very sound reasons for that.
And while you think it would show a lot of class to grant an exemption for same sex marriages that took place here, I disagree. This would create a special class for same sex marriages, when I think the whole idea is to treat everyone the same, regardless of sexual preference.
Even if what you say is true, it doesn't weaken my argument; if anything, it makes it stronger.
What you seem to be talking about are straight people that get married in Canada who are already married elsewhere. But Canada doesn't want these people getting married here at all. I would imagine that those people must have to lie to Canadian officials to get those marriages. The feds don't promote Canada as a destination for people who want second marriages. I mean, polygamy is illegal in Canada. You are talking about dishonest foreigners. But same-sex couples came here to get married in good faith. It is the government that has been dishonest.
The fact is that thousands of same-sex couples poured into Canada to get legal marriages that were promoted by the federal government. The feds didn't do that to heterosexual couples in the US, and especially not for foreigners that were already married. The government treated same-sex couples in the US differently, as a market. Surely you can see that this is different treatment.
And you say, "it's all about jurisdiction, no story here." I spent half my post discussing how jurisdiction is an issue in this case that could be decided either way by a court. It is also a situation where Harper could fix this mess right away. Jurisdiction is a big story here.
You are missing the point, MUCH more than that is being said: The claim is being made that the marriage never happened.
If the claim was merely that the couple didn't have residency here and therefore couldn't divorce here that would be entirely different. That is also being said, yes, but that is not what's controversial here.
Nope. The government, is saying this: "same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple." The government lawyer is saying that the marriages are not legal in Canada.
The feds could say two things here. They could say, "these marriages are valid in Canada under our laws, but in order to get a divorce you need to reside here one year." But they are saying, at least according to the article, that these marriages were never valid in Canada.
It's in quotes in the article.
Now, if the article has misquoted the lawyer, or if it was taken out of context, and really the lawyer is only saying that the marriages are valid in Canada, but you have to be here a year to get a divorce, then I would say that your description of the legal implications would be right and I wouldn't have such a big problem with the law. It is really the quote of the government lawyer that I object to.
The problem is that if Canada disavows those marriages as the quote suggests it is doing, then no other jurisdiction could possibly recognize those marriages as valid for the purpose of receiving benefits and such. So that could have a big impact on people that are currently receiving benefits in the US.
As for your last comment, I would ask you, flat out, did the federal government treat same-sex couples the same as heterosexual couples when they promoted Canada as a destination to get married? I would say that the federal government exploited the fact that same-sex couples are denied rights in US states in order to boost tourism. It doesn't seem like you have much sympathy for the wrong that was done to these people, you don't even acknowledge that they may have been deceived by the feds. I don't see how you can call people who were lied to and now only want what they were promised a "special class".
I will just add that at the time, when US citizens were pouring into Canada from the supposed "land of the free" in the hope of getting their rights fully recognized, I felt a lot of pride in our country. It was wonderful to be able to say that US residents come to Canada for freedom. Now the feds are going to throw that away for no good reason. Frankly, I think your perspective is narrow.
The claim is being made, that for the purposes of the taking jurisdiction for the divorce, the marriage is not valid.
This is based on the actions of the applicants. Had they chosen to live either here, or another jurisdiction where the marriage is recognized, then the argument could not be raised.
The Canadian government cannot control the choices these people make about where to live and where to get married.
You are taking it out of context. I don't blame you because I suspect you don't have any legal training.
The argument is being made in the context of the question of Canadian courts taking jurisdiction for the divorce, and for no other purpose. You want to make it bigger than it really is.
It doesn't matter what the article says, the quote I put in earlier is word for word from the court document, which is a reply to an application. Use that for your starting point, it is rock solid.
You are wrong about other jurisdictions and benefits etc. A number of places have already recognized these marriages for the purpose of benefits and Canada declining jurisdiction for the divorce should not impact that.
I don't know if the federal government promoted Canada as the place to get married. I know Ontario did, because they issue and administer the licenses etc. I honestly don't know if the feds did, and I don't care if they did. There is no deception, if they had bothered to look into the issue of divorce they would have understood these requirements existed before the same sex marriages were allowed, and still exist.
And if you think we should create a special class for foreigners who get married here and leave...I think you don't respect the rule of law.
It is not the job of Canada to finance and legislate for other jurisdictions.
Fuji fuji fuji.....your predictions have never been on the money. You've been wrong on so many things over such a long time frame ......from Russian rockets in Mexico to swine flu to internet postings of security scans.....and it goes on and on. Fuji predicting something will happen is almost a guarantee that it won't. Why work yourself into a lather until some actually concrete happens? You did this a month ago on abortions didn't you? Calm yourself
And there you have it. You "don't know" and "don't care" if the feds lied to same-sex couples. Pretty brutal. You may have legal training, but you are indifferent to the exploitation of same-sex couples and are partial to the feds. I think this is colouring your reading of the law. You can't claim to be impartial after that.
Your quote from the factum is this: "The Superior Court does not have jurisdiction to grant the joint applicants a divorce because under principles of private international law that apply in Canada the joint applicants are not legally married under Canadian law."
I'm sorry, but this also does not say what you claim. Surely if you have the factum and it says exactly what you claim, then there is something in there that supports your interpretation. The factum will explain the scope of the government's argument. If they are arguing that the marriages are only invalid for the purpose of divorce then it will say that. So, I invite you, here and now, to simply produce from the factum a quote that supports your view of the government's argument. Prove yourself right if you can.
It's not good enough to simply claim that you have mountains of legal training and that we just don't get it. Your supposed authority is no substitute for evidence. All I really know about you is that you say you don't care whether the feds lie to same-sex couples about our laws. I'm not going to take the word of someone who admits he doesn't much care if these same-sex couples have been lied to by the feds.
If this is what the government is saying (frequently articles not written by specialized legal reporters, make a hash of such issues).
It is merely the reverse of what has long been the case (certainly in Canada, the U.S. and the U.K.). A marriage abroad is valid only to the extent that it would be valid in your country of domicile.
You can't have a straight marriage with the same facts. Only by changing one important fact, the fact that prevented that marriage from being recognized where they live: that the partners are of the same sex.
To keep the example parallel you'd have to be talking about a straight marriage not recognized as such where they live, but recognized here. Cousin marriage comes to mind, as do varying ages of consent with and without parental permission.
But there would be no legal issue if the applicants had simply acted according to Canadian law and established a year's residency here before applying for a divorce here.
The point at issue here really is divorce law, not marriage. The couple—who were never married in the eyes of the law where they lived—want a Court in a country they've never resided in to grant them a divorce. Since that Court would have zero power or authority to enforce any meaningful aspect of the divorce other than 'you are no longer married' in the country they do live in (and that country's position would be 'who cares?'), it's unreasonable to imagine the Court would assent to its decisions being so trivialized. And quite sensible for the Justice Department to try keep our law clear of such frivolous foolishness. Given that any such decree could be waved around in a foreign court as ammunition to settle serious issues like property and custody under laws we might find objectionable, it's quite sensible for our Courts not to want to be any part of that.
The Fed's position is even more to the point when we consider the applicants want the year's residency requirement waived, in order to be divorced. It really reduces the whole concept of state solemnization of matrimony to a five and dime farce. One can't help imagining the only reason they want a Canadian divorce is so they can do it all over again. It's the only thing not having one stops them from doing.
If you can't do the time; don't do the crime comes to mind.
And as the horrible murder case underway in Kingston illustrates: These days no one much cares whether you have a valid foreign marriage that we wouldn't allow here. Not as long as you're not asking our laws to do anything about it, like dissolve it, or settle rights within or after it. Not the sort of thing starry-eyed couples—triples or more—want to think about when they say "We do", but they sure want the law to be part of their marriage when it goes on the rocks.
That quote from the government response, is the entirety that they have plead on the issue so far. That is it. There is no more to get. And I don't have special access, the documents are reproduced in full on the CBC website. Do your own homework.
Suggesting that the government filing has to explain the scope of the position is just wrong. The filings make arguments within the issues framed by the pleadings. In this case the framed issue is whether or not the Canadian courts should take jurisdiction for the divorces. That is the sole issue of the application. Nothing more, nothing less.
But since I suspect you have not been called upon to read or interpret many filings or pleadings I guess we can cut you some slack.
It is funny, you rant on about evidence but present none that the federal government lied to attract people here to get married. Did they? Which government? If it was Martin's government do you blame Harper for that. How about some quality analysis and evidence from you on this issue.
Whether or not the feds lied to people to get them to come get married here (not yet established now is it...) is irrelevant to the issues in the thread. Firstly, is this some sort of move by Harper to roll back gay marriage, and is the law fair and reasonable? We actually have some information to use for those discussions.
And I know legal stuff can be a little arkane, so I have been doing my best to explain it.
But if you want to discuss the issue of the feds lying...why don't you post some useful information to form the basis for a discussion, other than to just speculate on my motives. If the fed lied, fine and dandy, than the couples have a lovely class action for misrep. What exactly did the feds say that you say was misleading? So far, you have produced nothing on that subject, not an iota of evidence.
So, in other words, you don't know what the government's position is. You have nothing to support your contention that the government is only making a very narrow argument.
My evidence for the lying is from the article. If it is accurate, and the feds promoted Canada as a place to obtain a legal marriage, then there are only a few possibilities. One is that the feds lied to the same-sex couples. Another is that the feds didn't do their homework as to the validity of those marriages. This is evidence. It isn't conclusive evidence, but as I will demonstrate, that doesn't matter.
You should appreciate that under both interpretations of this evidence, my argument remains valid. In both cases the federal government has behaved badly, either through fraud or negligence. If it is negligence then it means that the feds promoted Canada as a same-sex marriage tourist destination and only considered the tourist dollars and not the legal consequences for the same-sex couples. Pretty shameful either way.
But, as you have said, you "don't know" and "don't care" about that. You admit that there is a possible class action against the government. Well, that is a start I suppose, although you should appreciate that if you are going to say that the government's lying is "fine and dandy" that you're going to come off as pretty flip about the whole thing. That to me is evidence that you really don't much care about the same-sex couples that are affected by this.
I would think that it should bother Canadians that the government has either lied or behaved incredibly negligently towards same-sex couples. It bothers me. It should bother you.
For crying out loud.
Let's try this explanation of the facts: http://www.t.co/bZH4FDth
The bottom line is the same as has been explained countless times already: because there is no "marriage" to dissolve where the couple actually live, there is no way for Canada to grant a divorce.
It doesn't matter a whit that they got married here: we don't track symmetry. You can get married in Canada, get divorced in California, get married again in Canada, be widowed in Belgium, etc, as long as you satisfy the requirements at each event.
And that's true no matter the couple.
But imagine the mess if it were otherwise: if Ontario required an Ontario divorce in order for the dissolution of the relationship to be recognized. You'd have legally married couples which Canada legally considered to be bigamists just because they lived out their lives, getting divorced and remarried outside of Ontario.
In this case, no court action is required anywhere on the planet to recognize the dissolution of the relationship, because those involved live in a locale where their "marriage" is not recognized as such.
Let's try this explanation of the facts: http://www.t.co/bZH4FDth
The bottom line is the same as has been explained countless times already: because there is no "marriage" to dissolve where the couple actually live, there is no way for Canada to grant a divorce.
It doesn't matter a whit that they got married here: we don't track symmetry. You can get married in Canada, get divorced in California, get married again in Canada, be widowed in Belgium, etc, as long as you satisfy the requirements at each event.
And that's true no matter the couple.
But imagine the mess if it were otherwise: if Ontario required an Ontario divorce in order for the dissolution of the relationship to be recognized. You'd have legally married couples which Canada legally considered to be bigamists just because they lived out their lives, getting divorced and remarried outside of Ontario.
In this case, no court action is required anywhere on the planet to recognize the dissolution of the relationship, because those involved live in a locale where their "marriage" is not recognized as such.
OTTAWA • The federal Justice Minister said Thursday he will clarify the law so that gay couples who travel to Canada to get married can return for a divorce.
But the federal government, Rob Nicholson said, has no plans to reopen the debate on same-sex unions and the definition of marriage.
“I will be looking at options to clarify the law so that such marriages performed in Canada can be undone in Canada,” he said in a statement.
In the middle of the controversy is a Toronto court case involving a foreign lesbian couple seeking a divorce.
The couple wed in Toronto in 2005. Under a court order, they cannot be named.
The couple lives in Florida and England, which do not recognize gay marriages. “As a result, their marriage is not legally valid under Canadian law,” the federal lawyer said.
Canada’s Divorce Act also states that all married couples, regardless of sexual orientation, must live in Canada for at least one year in order to divorce in this country, which was not the case for this non-Canadian couple.
As Florida and England don’t recognize the couple’s marriage, they cannot divorce in those jurisdictions either.
On Thursday, Mr. Nicholson acknowledged that, under current law, the marriage “could not be dissolved in Canada.”
Prime Minister Stephen Harper, while speaking in Halifax, was quick to attempt to dispel the controversy. Although he said he didn’t know much about the case, he was clear that his government “has no intention of further opening or reopening this issue.”
But the federal government, Rob Nicholson said, has no plans to reopen the debate on same-sex unions and the definition of marriage.
“I will be looking at options to clarify the law so that such marriages performed in Canada can be undone in Canada,” he said in a statement.
In the middle of the controversy is a Toronto court case involving a foreign lesbian couple seeking a divorce.
The couple wed in Toronto in 2005. Under a court order, they cannot be named.
The couple lives in Florida and England, which do not recognize gay marriages. “As a result, their marriage is not legally valid under Canadian law,” the federal lawyer said.
Canada’s Divorce Act also states that all married couples, regardless of sexual orientation, must live in Canada for at least one year in order to divorce in this country, which was not the case for this non-Canadian couple.
As Florida and England don’t recognize the couple’s marriage, they cannot divorce in those jurisdictions either.
On Thursday, Mr. Nicholson acknowledged that, under current law, the marriage “could not be dissolved in Canada.”
Prime Minister Stephen Harper, while speaking in Halifax, was quick to attempt to dispel the controversy. Although he said he didn’t know much about the case, he was clear that his government “has no intention of further opening or reopening this issue.”
Same-sex marriage is here to stay under Harper
tim powers
Globe and Mail Update
If anyone thinks Stephen Harper is going to do anything to reverse, alter or diminish same-sex marriage in Canada they truly need to get a grip on reality.
Regardless of one's perspective on the issue – and there remain many, mine being supportive – there is absolutely no political win for the Prime Minister in revisiting same-sex marriage or reversing it, as some would desire. From a policy perspective, stepping back after a right is gained and entrenched would be extremely difficult. Perhaps people should take Mr. Harper at his word when he repeatedly says he has no interest in revisiting the issue.
His opponents do the country, and in particular those in same-sex marriages, no favours when they stoke fear and suggest the Conservative government is about to do something it is not – undo legal marital unions. This Prime Minister is more interested in economic policy that any form of regressive social engineering. He has had a history of no tolerance for intolerance: Just ask former Alliance MP Larry Spencer, who Stephen Harper kicked out of caucus in 2003 for suggesting homosexuality was some sort of disease.
Certainly, there a members of the Conservative Party – and other political parties for that matter, who do not support same-sex marriages – just as there are members of all parties who do. But most acknowledge this debate has passed and same-sex marriages are here to stay.
The Prime Minister has worked too long and too hard to make his opponents’ fabricated notion of a hidden agenda real. I suspect when he awoke in Halifax Thursday morning he was a surprised as everyone else to see Kirk Makin's story. Thereafter, both he and his Justice Minister responded rapidly, communicating clearly the government's intention to fix anomalies that exist in Canadian law. As noted in some of the coverage, the couple at the centre of the legal proceeding that produced the media storm said they believed there had been “unintentional” actions not considered with the existing laws.
The federal Department of Justice handles umpteen cases that elected officials are never briefed on. Industrious lawyers abound in all areas of practice. Having seen friends go through a variety of family law and divorce proceedings, no legal tactical approach surprises me. What does cause me pause is anyone who actually thinks this government is going to undo same-sex marriage. It is not going to happen.
tim powers
Globe and Mail Update
If anyone thinks Stephen Harper is going to do anything to reverse, alter or diminish same-sex marriage in Canada they truly need to get a grip on reality.
Regardless of one's perspective on the issue – and there remain many, mine being supportive – there is absolutely no political win for the Prime Minister in revisiting same-sex marriage or reversing it, as some would desire. From a policy perspective, stepping back after a right is gained and entrenched would be extremely difficult. Perhaps people should take Mr. Harper at his word when he repeatedly says he has no interest in revisiting the issue.
His opponents do the country, and in particular those in same-sex marriages, no favours when they stoke fear and suggest the Conservative government is about to do something it is not – undo legal marital unions. This Prime Minister is more interested in economic policy that any form of regressive social engineering. He has had a history of no tolerance for intolerance: Just ask former Alliance MP Larry Spencer, who Stephen Harper kicked out of caucus in 2003 for suggesting homosexuality was some sort of disease.
Certainly, there a members of the Conservative Party – and other political parties for that matter, who do not support same-sex marriages – just as there are members of all parties who do. But most acknowledge this debate has passed and same-sex marriages are here to stay.
The Prime Minister has worked too long and too hard to make his opponents’ fabricated notion of a hidden agenda real. I suspect when he awoke in Halifax Thursday morning he was a surprised as everyone else to see Kirk Makin's story. Thereafter, both he and his Justice Minister responded rapidly, communicating clearly the government's intention to fix anomalies that exist in Canadian law. As noted in some of the coverage, the couple at the centre of the legal proceeding that produced the media storm said they believed there had been “unintentional” actions not considered with the existing laws.
The federal Department of Justice handles umpteen cases that elected officials are never briefed on. Industrious lawyers abound in all areas of practice. Having seen friends go through a variety of family law and divorce proceedings, no legal tactical approach surprises me. What does cause me pause is anyone who actually thinks this government is going to undo same-sex marriage. It is not going to happen.
