Harper social conservative agenda rears its head - moves against same sex marriage
- Thread starter fuji
- Start date
Straight marriages, with the same facts, would get a different result. Straight marriages, with the same facts, would be legally recognized in their home countries.Straight marriages, with the same facts, would get the same result.
Right there in black and white, yet the argument goes on. :closed_2:Politicians who don't understand the law are trying to make an issue out of this.
The law here is clear. In order to get a divorce in Canada you must:
a) reside here for a year; and
b) have a marriage that is legally recognized in your domicile.
Gay couples cannot do that. No more, no less. No move, no conspiracy, just a typical legal problem. I expect the court to grant the government a win and do a work around b). There are very valid reasons that Canadian family courts should not be taking jurisdiction over foreign marriages for the purpose of divorce.
Actually, not so. Not all straight marriages would be recognized in their domiciles. Nice try though.Straight marriages, with the same facts, would get a different result. Straight marriages, with the same facts, would be legally recognized in their home countries.
Not necessarily, what if Canada for instance allowed a much closer degree of consanguinity than was allowed in "X." “X” would very likely not recognize that marriage.Straight marriages, with the same facts, would get a different result. Straight marriages, with the same facts, would be legally recognized in their home countries.
Do you really want Canada to be in the position of having married people with no right to reside in Canada and whose marriage is not valid in their place of domicle then later be in the position of attempting to divide property, make decisions about children etc. . . that the court has no authority to enforce?
The facts are that the marriage is not recognized in the home domicile. That can, and does happen to straight marriages to.I meant what I wrote: With the same facts. Not straight marriages with other facts.
The prohibition is not gay-specific.
The bottom line question is...do you think Canadian divorce courts should take jurisdiction over all these foreign folks who got married here but do not reside here?
Your issue is not with the laws of Canada. We recognize same sex marriages. Your issue is with the laws of the jurisdictions form which these people come.Straight marriages, with the same facts, would get a different result. Straight marriages, with the same facts, would be legally recognized in their home countries.
It may well be that depending on which way the Court comes down the government will pass legislation to assist these people.
At a practical level, this sums up the whole problem. They would be opening up a major can of worms if they started granting such devoices to nonresidents.Do you really want Canada to be in the position of having married people with no right to reside in Canada and whose marriage is not valid in their place of domicle then later be in the position of attempting to divide property, make decisions about children etc. . . that the court has no authority to enforce?
Yup, I think you're right. Who says people on the internet can't be won over by logic and facts? LOLIt really is about jurisdiction. If these folks had their marriage ceremony here, and then lived here the court would be able to deal with them. Based on their facts they cannot. And it is not a gay issue. Straight marriages, with the same facts, would get the same result.
jwm
You know, I agree with that. The residency requirement for divorce seems sane, for exactly this reason. It is the claim that they were never legally married in the first place which is controversial.At a practical level, this sums up the whole problem. They would be opening up a major can of worms if they started granting such devoices to nonresidents.
Well. My issue is with what the Government of Canada claims is the law of Canada--whether a court will agree with the Government of Canada remains to be seen. I hope not.Your issue is not with the laws of Canada.
Here is the problem:
The marriage is only unrecognized in their home jurisdiction for discriminatory reasons. Should Canada import racism, sexism, discrimination based on sexual orientation, national origin, and so on, and force it onto couples who are legally in Canada (resident or not) just because their home country does? Supposing two people arrive in Canada who are of different religions, and they want to get married, but their home country does not recognize inter-faith religions. Do we import their home country racism and prohibit the marriage? Or are we a beacon of freedom, a nation that stands up for people's rights, most especially while they are visiting us?!
I think Canada should take a dim view of discrimination by other countries, and not allow it to colour our legal processes.
Meh, take the Conflict of Laws course first then get back to me. Until then, I see nothing happening here, but newly enfranchised folks with their panties in a knot.
That's my 2 cents.
That's my 2 cents.
I could see Canada issuing a divorce but they would have absolutely no say in the division of property etc....
The bottom line question is...do you think Canadian divorce courts should take jurisdiction over all these foreign folks who got married here but do not reside here?
I guess the concern (though I question the motive) is can a marriage be considered legal if there is no way to dissolve the marriage?You know, I agree with that. The residency requirement for divorce seems sane, for exactly this reason. It is the claim that they were never legally married in the first place which is controversial.
Hence unless one or both of the parties are planning on remarrying in Canada what would be the point to such a divorce?I could see Canada issuing a divorce but they would have absolutely no say in the division of property etc.
There is a way to dissolve the marriage: Reside in Canada for a year, or do the same thing in some other jurisdiction. In their HOME jurisdiction there is no problem--they aren't considered to be married there, so what's to dissolve?I guess the concern (though I question the motive) is can a marriage be considered legal if there is no way to dissolve the marriage?
I see people post stuff on here all that time that is "fact" that I know to be either false or grossly misleading. Excuse me if I don't take your word for it. I'll wait for evidence thank you..Sure I have a seat at the caucus table and hear it all the time, but the notes are taken on rice paper with vanishing ink, so sorry there is no public evidence. Having done some work with the Sol Gen, it's all over the place, mst recently I have come face to face with his control issues with the Aboriginal Affairs. He's one of the biggest control freak in years, especially now that he has a majority.
Just to take fuji's side here, I think that if the article is correct, then the federal government has done something clearly wrong.
The articles says, quoting the government lawyer, "same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple." So that means that all the same-sex marriages performed in Canada for US citizens were never valid in the first place.
The article also says that same-sex marriage was "promoted by the provincial and federal governments". If that's true then the feds were claiming that the marriages in Canada were valid at the time, which is the exact opposite of what they are saying today. If the feds were promoting same-sex marriage to US residents, hoping to cash in on the tourist dollars, then it is reprehensible to deny those marriages later, once the initial influx of tourist cash died down.
Also, although the same rules would apply to heterosexual marriages as some have pointed out—specifically, that heterosexual couples also cannot get a divorce in Canada unless they reside here for one year—the effect is not the same, because heterosexual marriages are readily available in North America and so American heterosexuals don't shop around for marriage destinations and don't come to Canada expressly for that purpose. The federal and provincial governments profited from the differences between the laws in the US and Canada, and now Canada wants to turn around and say that those differences don't count. The government really misrepresented its law to same-sex couples in a way that they did not for heterosexual couples. So there is real unfairness here.
This isn't simply about the right to divorce, because the feds are denying the validity of the marriages of the US residents. It is problematic for the feds to make that argument because it is for the provinces to make laws about the solemnization of marriage, and for the feds to make laws about marriage and divorce. Obviously there is overlap and there is an issue as to who has jurisdiction. The federal government lawyer has made a claim about the validity of the marriages and that gets very messy in terms of jurisdiction. So if the feds continue to make that argument, that is a point on which a court could say that the feds are wrong, depending how they interpret the division of powers. To my memory, all of the legislation validating same-sex marriage is provincial, so there is a strong argument that the feds cannot deny these marriages.
So fuji is right, this is a sneaky way of invalidating gay marriages that were obtained by US residents. Harper can take advantage of the fact that the jurisdiction for the solemnization of marriage and divorce is divided, and invalidate some of the same-sex marriages performed in Canada by "doing nothing." But I don't think Harper is doing nothing. Harper is taking action if the feds are in effect saying that the marriages are invalid for US residents, because, assuming the article is correct, this is a change in the fed's position, and it may be an usurpation of provincial jurisdiction.
Now, it is for the feds to change the divorce law to waive the one-year residency requirement (before obtaining a divorce). This would solve the problem. But, as I see it, this is the feds changing the divorce law, clearly their proper jurisdiction. Whether they should have anything to say about the validity of marriages is much less clear.
And frankly I share the skepticism that Harper would make a special exception for these same-sex marriages, or simply abolish the one-year waiting requirement. I think it would show a lot of class to simply create this exemption.
And I think the courts can take action here too. The courts can say that the feds don't have the jurisdiction to decide on the validity of the marriages (or they could go the other way). The courts could also accept a novel argument that recognizes the fact that the government made representations that same-sex marriages were going to be valid for these same-sex marriage tourists.
The articles says, quoting the government lawyer, "same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple." So that means that all the same-sex marriages performed in Canada for US citizens were never valid in the first place.
The article also says that same-sex marriage was "promoted by the provincial and federal governments". If that's true then the feds were claiming that the marriages in Canada were valid at the time, which is the exact opposite of what they are saying today. If the feds were promoting same-sex marriage to US residents, hoping to cash in on the tourist dollars, then it is reprehensible to deny those marriages later, once the initial influx of tourist cash died down.
Also, although the same rules would apply to heterosexual marriages as some have pointed out—specifically, that heterosexual couples also cannot get a divorce in Canada unless they reside here for one year—the effect is not the same, because heterosexual marriages are readily available in North America and so American heterosexuals don't shop around for marriage destinations and don't come to Canada expressly for that purpose. The federal and provincial governments profited from the differences between the laws in the US and Canada, and now Canada wants to turn around and say that those differences don't count. The government really misrepresented its law to same-sex couples in a way that they did not for heterosexual couples. So there is real unfairness here.
This isn't simply about the right to divorce, because the feds are denying the validity of the marriages of the US residents. It is problematic for the feds to make that argument because it is for the provinces to make laws about the solemnization of marriage, and for the feds to make laws about marriage and divorce. Obviously there is overlap and there is an issue as to who has jurisdiction. The federal government lawyer has made a claim about the validity of the marriages and that gets very messy in terms of jurisdiction. So if the feds continue to make that argument, that is a point on which a court could say that the feds are wrong, depending how they interpret the division of powers. To my memory, all of the legislation validating same-sex marriage is provincial, so there is a strong argument that the feds cannot deny these marriages.
So fuji is right, this is a sneaky way of invalidating gay marriages that were obtained by US residents. Harper can take advantage of the fact that the jurisdiction for the solemnization of marriage and divorce is divided, and invalidate some of the same-sex marriages performed in Canada by "doing nothing." But I don't think Harper is doing nothing. Harper is taking action if the feds are in effect saying that the marriages are invalid for US residents, because, assuming the article is correct, this is a change in the fed's position, and it may be an usurpation of provincial jurisdiction.
Now, it is for the feds to change the divorce law to waive the one-year residency requirement (before obtaining a divorce). This would solve the problem. But, as I see it, this is the feds changing the divorce law, clearly their proper jurisdiction. Whether they should have anything to say about the validity of marriages is much less clear.
And frankly I share the skepticism that Harper would make a special exception for these same-sex marriages, or simply abolish the one-year waiting requirement. I think it would show a lot of class to simply create this exemption.
And I think the courts can take action here too. The courts can say that the feds don't have the jurisdiction to decide on the validity of the marriages (or they could go the other way). The courts could also accept a novel argument that recognizes the fact that the government made representations that same-sex marriages were going to be valid for these same-sex marriage tourists.
